Current Law Journal

Supplementary Series
314 1998 [1998] 3 CLJ Supp

a RUBIAH ANUAR
v.
LIM SANG
HIGH COURT MALAYA, JOHOR BAHRU
b
ABDUL MALIK ISHAK J
[CIVIL SUIT NO: 23-25-1994]
13 FEBRUARY 1996
TORT: Negligence - Road accident - Whether a person not a party to the
c suit can be contributorily negligent
DAMAGES: Personal injury - Compound fracture of medial condyle of the
right femur - Fracture of right patella - Fracture of metatarsal bones - Right
knee flexion up to 115 degrees - Intra-articular fractures - Permanent scars
- General and special damages - Assessment of
d
A motorcycle ridden by one Mujahid bin Rahmat with the plaintiff as pillion
met with an accident with a motorcar driven by the defendant. The facts
showed that following the accident, the plaintiff had suffered serious multiple
injuries for which she had to undergo three major operations. The evidence
e also showed that the accident was brought about by the motorcar encroaching
onto the path of the motorcycle and colliding against it. According to the
plaintiff she had a vantage view of the traffic in front of her and that the
stretch of road was straight with no potholes or traffic light. This piece of
evidence notwithstanding, the defendant did not attend trial and hence did not
f give any rebuttal evidence. In the circumstances, before the learned judge, a
question arose as to whether the plaintiff had proved negligence against the
defendant, and if so, whether the defendant was 100% to be blamed for the
accident.
Held:
g
[1] This is a simple case of a car encroaching into the lawful path of a
motorcycle ridden on a straight road with a slope towards its end and that,
in law, would be negligence on the part of the driver of the car.
[2] The onus would be on the driver of the car to show that he was not
h negligent. However, the defendant took a perilous course by not attending
the trial and, consequently, the defendant did not give evidence at the trial.
That being the case the particulars of the negligence of the defendant as
itemised in the plaintiff’s statement of claim stood unrebutted.

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[1998] 3 CLJ Supp Rubiah Anuar v. Lim Sang 315

[3] A person not cited as a party to the suit cannot be held accountable to a
50% liability for the accident that had occurred. That being the case, the
defendant was 100% to blame for the accident.
[4] The plaintiff in this case underwent three major operations and she was
unable to walk for six or seven months after the accident. The plaintiff’s
b
right knee flexion was up to 115 degrees and her injury was worsening.
The award for this injury should be increased having regard to the
diminishing value of the ringgit although there is a reasonable comparable
case. The plaintiff is awarded a sum of RM37,000 for this injury.
[5] All the scars incurred by the plaintiff were said to be permanent features c
throughout the life span of the plaintiff. According to the plaintiff’s
specialist, the scars are a cosmetic blemish and the differences in
pigmentation heightens the blemish. The plaintiff is awarded RM10,000
under this head.
[Order accordingly.] d

Cases referred to:

Chan Yee v. Chan Yoke Fong [1990] 3 MLJ 297 (aff)
Chua Heng Huat v. Sin Ei Tam & Anor [1992] MMD (May) 605
Er Siew Keng v. Eng Thiang Lai [1990] 1 CLJ 488
e
Goh Beng Seng v. Dol bin Dolah [1970] 2 MLJ 95 (dist)
Harris v. Empress Motors Ltd and Cole v. Crown Poultry Packers Ltd [1983] 3 All
ER 561 (foll)
Khoo Lai Beng v. Syarikat Binaan Noriswaty Sdn Bhd (Koh Kok Boon & Anor,
Third Parties) [1988] 2 MLJ xxix (dist)
Lim Ah Toh v. Ang Yau Chee & Anor [1969] 2 MLJ 194 (foll) f
Liong Thoo v. Sawiyah & Ors [1982] 1 MLJ 286 (foll)
Low You Choy & Anor v. Chan Mun Kit & Anor [1992] MMD (July) 875 (foll)
Phuah Jee Suan v. Nila Vasu Pillai [1973] 1 MLJ 186 (foll)
RJ McGuinness v. Ahmad Zaini [1980] 2 MLJ 304 (cit)
Sam Wun Hoong v. Kader Ibramshah [1981] 1 MLJ 295 (cit)
Scott v. London Dock Co [1865] 3 H & C 596 (cit) g
Shuib bin Awang v. Abdul Manan bin Abdul Latif [1992] MMD (July) 872 (foll)
Victor Alphonse Sebastian & Co v. Lee Ah Leek [1987] 2 MLJ xxi (foll)
White v. London Transport Executive [1982] 1 All ER 410 (cit)
Wong Tin Vui v. Patrick Midok & Anor [1975] 2 MLJ 260 (foll)
Zainal Abidin bin Ali v. Chan Mook Sung [1992] MMD (February) 202 (cit)
h
Legislation referred to:
Civil Law Act 1956, s. 28A(2)(c)(iii), (d)(i)

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a For the plaintiff - Khoo Kay Ping; M/s John Ang & Jega
For the defendant - S. Evensia Mary; M/s Saga & Assc

Reported by WA Sharif
JUDGMENT
b
Abdul Malik Ishak J:
It is not disputed that on 31 August 1986 at about 10.00 a.m. an accident
occurred between motorcycle FB 5123 P and motorcar JAE 4306. That
motorcycle was ridden by Md. Mujahid bin Rahmat (PW2 - “Mujahid”) from
c the direction of Kota Tinggi towards Desaru with the plaintiff as pillion and
the motorcar (described as a white motorcar) came from the opposite direction.
Along the stretch of Felda Air Tawar 2, the white motorcar was seen
overtaking a vehicle in front of it and in so doing it encroached into the path
of the motorcycle. That encroachment resulted in a collision between the two
d vehicles.
Mujahid described the motorcycle as Yamaha LC 125 model with its rear seat
higher than that of the front. Thus, when the plaintiff testified that she had a
vantage view of the traffic in front of her one can just imagine that she had
an unobstructed view ahead of her. She testified that on that day her friends
e on six motorcycles including the motorcycle in which she rode pillion
proceeded towards Desaru presumably to celebrate the National Day holidays
which, unfortunately, culminated in that awful accident. She described the
stretch of the road as straight with no potholes and, at the material time, the
traffic was not heavy. Mujahid described the road in the same fashion but he
f added that there was a slight slope at its end. The motorcycle was said to
be going up that slope while the motorcar was going down that slope. The
plaintiff marked an ‘X’ on the sketch plan at p. 19 of “IDP” to reflect the
position of the motorcycle in relation to the road. That marking clearly
showed the position taken by Mujahid whilst riding the motorcycle. Mujahid
g took the centre of the road and behind him at ‘O’ more to the left as marked
by the plaintiff on the same sketch plan was another motorcycle belonging to
the same clan. The plaintiff was unable to pinpoint the positions of the other
four (4) motorcycles on the sketch plan but she was emphatic that those
motorcycles were in front of the motorcycle on which she rode as pillion. She
h vividly described that she saw the white motorcar some 100 feet away and
as that white motorcar overtook a vehicle in front of it (described as another
motorcar), the distance between them were approximately 20 feet. It must be
a harrowing experience for her. She testified that the offside right rear view
mirror of the white motorcar hit the motorcycle on which she rode as pillion
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[1998] 3 CLJ Supp Rubiah Anuar v. Lim Sang 317

on its right side. Mujahid was able to control the motorcycle and stopped to a
the left side of the road. Fortunately, the plaintiff did not lose her balance
and she clung to Mujahid for her dear life. This was what she said:
Bila motorcar putih itu makan jalan saya dengar satu bunyi terlanggar dan saya
rasa terperanjat dan saya rasa badan saya sudah tidak stabil lagi di atas
motosikal itu, dimana kaki kanan saya sudah terangkat di atas tempat duduk b
dan kaki kiri saya terseret di atas jalan. Masa itu saya hampir jatuh dan saya
suruh rakan saya memberhentikan motosikal ke tepi, dia pun buat demikian.
Motosikal itu berhenti ke tepi. Saya pegang kuat badan rakan saya di depan
dan oleh itu saya tidak jatuh daripada motosikal saya.

Mujahid under cross-examination explained that as a result of the accident, c

the right foot rest of the motorcycle broke into two and Mujahid himself was
unhurt. In examination-in-chief Mujahid explained that though he had
explained to the policeman who took his report, yet his report did not state
that the white motorcar had encroached into his position. However, Mujahid
proceeded to say that he did say and describe in detail as to how the accident d
had happened in his police statement. I have seen both the plaintiff and
Mujahid as they gave their evidence in the witness box and I have nothing
but praises for them. They both gave cogent evidence and, at the end of the
day, I believed their versions as to how the accident took place.
e
The driver of the white motorcar must have sped as adverted to by Mujahid
and no matter how hard Mujahid tried to avoid the oncoming white motorcar,
the accident still took place. Indeed this is a simple case of the white motorcar
encroaching into the lawful path of Mujahid and colliding with the motorcycle
ridden by Mujahid on a straight road with a slope towards its end and that,
in law, would be negligence on the part of the driver of the white motorcar. f
It was a right side collision for both vehicles more in the nature of a
glancing collision. The onus would be on the driver of the white motorcar to
show that he was not negligent but somehow the defendant took a perilous
course by not attending the trial and, consequently, the defendant did not give
evidence at the trial. That being the case the particulars of the negligence of g
the defendant as itemised in the plaintiff’s statement of claim stood
unrebutted. It is germane at this juncture to refer to the decision of Lim Ah
Toh v. Ang Yau Chee & Anor [1969] 2 MLJ 194 especially at p. 195 where
Raja Azlan Shah J (as his Majesty then was) said:
h
When a motor vehicle collides with an oncoming vehicle on the wrong side
of a straight stretch of road, that is prima facie evidence of negligence. See
V.V.V. Menon v. Pigeonneau [1957] MLJ 85 and Tan Giok Hue v. Lim Swee
Peng [1960] MLJ 190. The onus is therefore upon the defendants to show that
the motor-van found itself where it did without any negligence on their part.
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a Erle CJ, in Scott v. London Dock Co [1865] 3 H & C 596 aptly said:
But where the thing is shown to be under the management of the defendant
or his servants, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defendants, that the
b accident arose from want of care.

In my judgment, on the facts the plaintiff succeeds unless the defendant rebuts
this prima facie case as alluded to by Raja Azlan Shah J (as his Majesty
then was) in the case of Lim Ah Toh v. Ang Yau Chee & Anor (supra) by
either proving that the event, that is to say, the encroachment into the
c
plaintiff’s lawful path was due to a specific cause and that such cause was
not attributable to lack of care on his part, or, that the event is due to some
cause unknown but he himself throughout exercised that degree of reasonable
care. Unfortunately, since the defendant failed to turn up in court during the
trial and his counsel elected to proceed to submit at the close of the plaintiff’s
d case, the defendant has failed to show that he was not negligent whilst driving
that white motorcar at the material time.
It was argued that even though the evidence of encroachment was not
challenged by the defendant, Mujahid was said to be partly responsible for
e the accident because he did not exercise reasonable care in avoiding that side
collision. It was said that Mujahid contributed 50% to the accident. Reliance
was placed on a passage appearing in the judgment of the late Sharma J, in
Goh Beng Seng v. Dol bin Dolah [1970] 2 MLJ 95 to argue that Mujahid
too owe a duty to the defendant to avoid the accident. For convenience that
passage of the late Sharma J was worded thus:
f
There can be no territorial or geometrical division of the road. The centre line
remains a guide and a reminder only. One’s duty is to ensure safety for oneself
and for others. The attitude of mind that because the driver coming from the
opposite direction is encroaching a few inches of my side of the road, I can
treat him as a trespasser and proceed on my half of the road as if it was my
g
exclusive domain and that I am totally immune from liability if I drive within
the exact limits of that ‘realm’ even though I know that an accident may
thereby happen on my side of the road, is the attitude of an irresponsible and
an irrational being. I owe a duty to others on the road just as others owe a
duty to me.
h
This calls for a recollection of the evidence. Mujahid rode that motorcycle
on the centre of his lawful path when the defendant coming from the
opposite direction overtook another motorcar in front of him and,
consequently, a side collision occurred. To the left of Mujahid’s motorcycle
was another motorcycle ridden by Mujahid’s friend and the fact that Mujahid
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[1998] 3 CLJ Supp Rubiah Anuar v. Lim Sang 319

controlled his motorcycle to prevent his motorcycle from falling on the road a
would be indicative of some measure of duty that had been exercised by
Mujahid. Be that as it may, one apparent omission in this Civil Suit is that
Mujahid was not cited as a party. That being the case, how could Mujahid
be held accountable to 50% liability for the accident that had occurred without
him been made a party to the Civil Suit ! speaking generally a plaintiff is b
not restricted to pursue his remedy against a defendant and is entitled to choose
the person against whom he wants to proceed and leave out the rest if
necessary. The plaintiff too cannot be compelled to proceed against parties
whom he has no desire to sue. There are however a number of exceptions
to this rule which are not applicable to this case as this was never made an c
issue before me (Chan Yee v. Chan Yoke Fong [1990] 3 MLJ 297).
For the reasons adumbrated above, I hold that the defendant was 100% to
blame for the accident. I gave judgment to the plaintiff with costs.
Quantum d
Special Damages
The parties agreed to the special damages that incorporated items like damage
to clothes, transport charges for the plaintiff’s family’s visit to hospital for
74 days, the plaintiff’s cost of travelling expenses for further treament at the e
hospital, medical report, search at RIMV, costs of police documents and costs
of a walking stick at RM1,028.20. An order to that effect was made.
Incidentally these items were specifically pleaded by the plaintiff within the
meaning of Sam Wun Hoong v. Kader Ibramshah [1981] 1 MLJ 295 FC,
and RJ McGuinness v. Ahmad Zaini [1980] 2 MLJ 304. f
General Damages
For pain and suffering together with loss of amenities for the various injuries
specified herein the following orders were made.
(1) A compound fracture of the medial condyle of the right femur. g

For this injury an award of RM37,000 was made based on an old comparable
of Victor Alphonse Sebastian & Co v. Lee Ah Leek [1987] 2 MLJ xxi where
the late Mustapha Hussain J, gave an award of RM33,000 for the injuries
sustained by the 1st plaintiff there and these injuries included: h
(a) Fracture of right midshaft femur;
(b) Laceration on the right knee joint;

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a (c) Laceration on the left knee; and

(d) Laceration on the lower jaw.
In sharp contrast, the plaintiff in this case underwent three major operations
and she was unable to walk for six or seven months after the dreadful accident.
b It was only after another ten or eleven months that the present plaintiff was
able to walk without crutches. Of pertinence, the plaintiff’s right knee flexion
was up to 115 degrees and her injury was worsening. In keeping with the
trend in a reasonably comparable case like Victor Alphonse Sebastian & Ors
v. Lee Ah Leek (supra), the diminishing value of the ringgit impelled me to
c award RM37,000 to the plaintiff for an injury under this head (Wong Tin
Vui v. Patrick Midok & Anor [1975] 2 MLJ 260; RJ McGuinnes v. Ahmad
Zaini (supra); and Liong Thoo v. Sawiyah & Ors [1982] 1 MLJ 286).
(2) Post traumatic secondary osteoarthrosis of the right knee.
d Both specialists in their reports agreed that with progress in time this injury
would become increasingly worse. It was said that the pain and restriction in
movements would in due course be more severe. The fractures which the
plaintiff sustained were said to be instraarticular fractures in that it involved
bones or parts of bones that constituted joint surfaces. Secondary changes
e would occur in the joint surfaces and the severity of these joint surfaces would
be dependant on the type of fracture and accuracy of restoration of the
articulating surfaces. Both specialists agreed that a total knee replacement or
an arthrodesis of the knee (fusion) would be required in the near future. Now,
in so far as the osteoarthritis of the plaintiff was concerned there was ample
f
evidence that it was not getting any better. In fact, it was getting worse and
because of this an award of RM5,000 was made by me based on two
comparables - bearing in mind always of the inflationary trend and the strength
of the ringgit. In Chua Heng Huat v. Sin Ei Tam & Anor [1992] MMD (May)
605 where for an osteoarthritis of the left knee joint, the Singapore District
Court awarded S$3,000. In Zainal Abidin bin Ali v. Chan Mook Sung [1992]
g
MMD (February) 202, the Singapore District Court awarded S$3,000 for
premature osteoarthritis.
I am fortunate that in the course of the trial both parties conceded that
RM11,000 would be incurred by the plaintiff for the cost of the knee
h replacement operation. In fact this was also the suggested sum of one of the
specialists and, accordingly, an order to that effect was made by me.

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[1998] 3 CLJ Supp Rubiah Anuar v. Lim Sang 321

(3) Scars. a

All the scars incurred by the plaintiff were said to be permanent features
throughout the life span of the plaintiff. These scars must surely be ugly and
they included:
(a) A vertical linear operative scar 13 c.m. long on the lateral aspect of b
the right lower thigh.
(b) A curvilinear operative scar on the front of the right knee 24 x 2 c.m.
long. Both scars were said to be hyperpigmented.
(c) A 14 x 7 x 12 x 8 c.m. quadrangular hypopigmented scar on the front c
of the right thigh.
According to the plaintiff’s specialist, these scars are a cosmetic blemish and
the differences in pigmentation heightens the blemish. In 1990, Abu Mansor
bin Ali J (now JCA) in the case of Er Siew Keng v. Eng Thiang Lai [1990] d
1 CLJ 488 awarded RM14,000 for all the ugly scars sustained by the plaintiff
there. In Low You Choy & Anor v. Chan Mun Kit & Anor [1992] MMD (July)
875, Wan Mohamed J (as he then was) for 14 c.m. x 0.5 c.m. scar on right
thigh and 4 c.m. x 0.2 c.m. scar on right buttock awarded a mere RM14,000.
On the basis of these two comparables, I awarded RM10,000 under this head
e
which, on reflection, I considered to be reasonable though on the lower scale.
(4) A compound fracture of the right patella.
The defendant’s specialist in his report stated that on the lateral view the
articular surface of the patella appears somewhat irregular. In Shuib bin Awang
f
v. Abdul Manan bin Abdul Latif [1992] MMD (July) 872 for fracture of the
patella Wan Mohamed J (as he then was) awarded RM9,000. Using this
comparable as a guideline, I awarded RM11,000 under this head which I
thought was reasonable in the circumstances.
(5) Closed fractures of the 2nd, 3rd, 4th metatarsal bones of the right foot. g

In 1988, Malek Ahmad J (now JCA) in Khoo Lai Beng v. Syarikat Binaan
Noriswaty Sdn Bhd (Koh Kok Boon & Anor, Third Parties) [1988] 2 MLJ
xxix awarded RM2,000 for fracture of the third right metatarsal bone. That
was a case decided in the context of Kota Bahru, Kelantan some eight years
h
ago. Here, in the ever expensive Johor Bahru town an award under this head
must surely be high. An award for RM6,000 was, accordingly, made by me.
The plaintiff under examination-in-chief described the injuries sustained by her
in the following terms:
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 Current Law Journal
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a Saya tercedera parah di bahagian lutut kanan di mana tulang lutut kanan saya
pecah. Tempurong lutut itu pecah. Kulit pecah dan akibat nya kaki kanan saya
patah. Kulit lutut kaki kanan saya tersiat.

Later, the plaintiff further testified under examination-in-chief that her:

b Tapak kaki kanan pun patah selain daripada lutut tempurong yang patah.

It is apparent that there were several injuries sustained by the plaintiff and at
first blush one cannot help but feel that there should be an element of
overlapping as envisaged in Phuah Jee Suan v. Nila Vasu Pillai [1973] 1 MLJ
186, 188 CA. It is now trite law that the principle of overlapping is too well
c entrenched in our judicial system that it cannot simply be disregarded or
pushed under the carpet, so to speak. Thus, overall under this head I would
scale it down by 10%.
To recapitulate, the awards for general damages would be as follows (on the
d basis of 100% liability):
(1) A compound fracture of the medial
condyle of the right femur. RM37,000.00
(2) Post traumatic secondary
e osteoarthrosis of the right knee. RM 5,000.00
(3) Scars: on the basis of the three
major scars. RM10,000.00
(4) A compound fracture of the
f right patella. RM11,000.00
(5) Closed fractures of the 2nd, 3rd, and
4th metatarsal bones of the right foot. RM 6,000.00
RM69,000.00
g
Overlapping at 10% RM 6,900.00
RM62,100.00
As I said earlier, a sum of RM11,000 was also awarded for the cost of the
knee replacement operation.
h
Loss Of Earnings
It was in evidence that before the accident the plaintiff was working as a
laboratory assistant at Highland Food Industries Sdn Bhd. Immediately two
years after the accident, she was not gainfully employed. Thereafter for a solid
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[1998] 3 CLJ Supp Rubiah Anuar v. Lim Sang 323

three years she worked in a factory that produced clothes and she was assigned a
the arduous task of sewing those clothes. For this purpose she had to use a
sewing machine that operated on leg pedal. This turned out to be strenuous
in view of the weakening right leg of hers. Her right leg became painful and
she had no choice but to stop work. However, as a Sijil Pelajaran Malaysia
(SPM) holder she managed to secure an office work but because of the b
airconditioning atmosphere in that office she had to resign as the coldness was
unbearable. Travelling by bus to work did not help the plaintiff either. With
her poor right knee flexion at 115 degrees for eight solid months, the plaintiff
found it difficult to board the bus. Both parties agreed that the plaintiff used
to earn RM450 per month with living expenses at RM50. This deduction in c
living expenses is in accordance with s. 28A (2)(c)(iii) of the Civil Law Act
1956 which enacts that:
(c) in awarding damages for loss of future earnings the Court shall take into
account –
d
(i) ...

(ii) ...

(iii) any diminution of any such amount as aforesaid by such sum as is

proved or admitted to be the living expenses of the plaintiff at the
time when he was injured; e

In Harris v. Empress Motors Ltd and Cole v. Crown Poultry Packers Ltd
[1983] 3 All ER 561, the Court of Appeal had occasion to define the scope
of the phrase “living expenses” to be:
(i) the ingredients that go to make up “living expenses” are the same whether f
the deceased was young or old, single or married, or with or without
dependants;

(ii) the sum to be deducted as living expenses is the proportion of the

deceased’s net earnings that he would have spent exclusively on himself
to maintain himself at the standard of life appropriate to his situation; g

(iii) any sums that he would have expended exclusively to maintain or benefit
others will not form part of his living expenses and will not be deductible
from his net earnings.

I fully subscribe to the compartmentalisation of the phrase “living expenses” h

in Harris (supra) and I may add, borrowing the words of Webster J, in White
v. London Transport Executive [1982] 1 All ER 410 that “... in the cost
of maintaining himself I include the cost of his housing, heating, food,
clothing, necessary travelling and insurances and things of that kind ... .” It
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a would appear that the meaning behind the phrase “living expenses” are not
closed. More imaginable items may be incorporated under it. Be that as it
may, using RM400 per month as a barometer, the result would be:
Pre-trial Loss Of Earnings
b (1) September 1986 to August 1988
24 months x RM400. RM 9,600
(2) September 1988 to August 1991
(for 36 months, the plaintiff
was gainfully employed). NO LOSS
c
(3) September 1991 to February 1996
54 months x RM400 RM21,600
RM31,200

d Future Loss Of Earnings

This should be from March 1996 and continuing. The plaintiff was 21 years
old at the time of the accident. Applying s. 28A(2)(d)(i) of the Civil Law Act
1956, the number of years purchase should be 16. Section 28A(2)(d)(i) of the
Civil Law Act 1956 states that:
e
in assessing damages for loss of future earnings the Court shall take into
account that 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.

f Thus, under this head the calculation would be as follows:

16 years x 12 months - (24 + 36 + 54 months) x RM400.00 equals 78 months
x RM400. The final figure would come to RM31,200.
Interest
g
For special damages, an interest at 3% per annum from the date of the accident
to the date of judgment was ordered by me. Under the category of general
damages with the exception for loss of future earnings, an interest at 8% per
annum from the date of service of writ to the date of judgment was also
ordered by me.
h