DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
DALAM NEGERI JOHOR DARUL TA’ZIM
RAYUAN SIVIL NO. 12B-200-2010
ANTARA
Prabu a/l Kalaiselvan … Perayu/Plaintif
DAN
1. Taw Kim Beng
2. Taman Ungku Tun Aminah
Furniture Centre … Responden/Defendan
JUDGMENT
GUNALAN A/L MUNIANDY, J.C :
[1] This is an appeal on both issues of liability and quantum
arising out of a running-down action in the Sessions Court involving a
motor-cycle ridden by the Plaintiff/Appellant (‘P’) and a motor-lorry
driven by the 1st Defendant/Respondent (D1). The appeal is by the
defendants against the finding by the learned Sessions Court Judge
(‘SCJ’) on liability wherein he held P 60% liable and D1 40%
contributorily negligent and his decision on the award of damages.
[2] Both parties to the collision gave conflicting and differing
versions as regards the cause of the accident. Briefly, the material
evidence is this:
Plaintiff’s version
On the material date D1 had stopped his motor lorry on the
side table on the same path as P. D then decided to come
out of the side table and turn into a junction at the right and
upon doing so he had caused P to collide into his motor lorry
when he obstructed P’s lawful path.
Defendant’s version
D1 was travelling from the bottom to the top and intended to
turn right at the “T” junction of Jalan NB2 and Jalan NB2 7/5
as shown in the sketch plan. Upon nearing the junction, D1
had slowed down and given the requisite signals to turn
right. After ensuring that there were no vehicles from the
opposite direction, D1 turned right but was collided into by P
who was travelling from the rear.
Decision of Sessions Court
[3] After having heard the testimonies of P, D1 and the
Investigating Officer, the learned SCJ found the version of D1 to be
more probable and consistent with the silent or neutral evidence. He
was convinced that P was more at fault in contributing to the
accident. He had duly considered the conflicting versions as above
and taken approach based on established principles on the onus of
proof in negligence cases [ See Puspa Wangi bin Hassan ].
[4] In arriving at his finding that D1’s version was more probable
compared to that of P and on the finding on contributory negligence,
factors considered by the learned SCJ were these Firstly, the
discrepancy between P’s police report and his evidence in court in
that in the report made soon after the collision, P had failed to state a
material fact when the incident was still fresh in his mind. Secondly,
the silent evidence in the form of the location of the glass fragments
in the sketch-plan and key did not support P’s version. This was
because the position of the fragments on lane marked A1 – A2 and
not A – A1 indicated that D1 could not have cut across P’s lawful path
(A – A1) but D1 must have been collided into when he was about to
turn into the junction on the right that is shown as per D1’s evidence.
Thirdly, the extensive damage to P’s vehicle was indicative of riding
at an excessive speed in a housing estate. From his evaluation of
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the evidence, the learned SCJ found as a fact that P must have been
following D1 from the rear but not at a safe distance from which he
could react in time in the event of any exigencies of the leading
vehicle. As the road at the scene was straight without any
obstruction to P’s view, the learned SCJ found it clear that D had
failed to pay sufficient attention to the traffic ahead as the road was
wide enough for him to avoid the collision. Finally, he held that D1
had complied with Highway Code 16 save and except that he had
failed to ensure that there was no traffic behind that was attempting to
overtake him from the right.
[5] P’s stand in this appeal was substantially that the learned
SCJ had failed to consider the I.O’s evidence relating to the
summons issued to D1 under Rule 7 that had been paid. While the
I.O said that the summons was issued because of an admission by
D1, D1 denied that he had admitted the offence. According to him,
he settled the summons because the police informed him that he had
caused the accident. It is trite law that payment of a traffic summons
by a defendant does not by itself constitute an admission of
negligence in a civil claim such that the plaintiff could be absolved of
the onus of proving negligence against the defendant. Persons
involved in motor vehicle accidents settle summonses for a variety of
reasons, not necessarily as an admission of negligence or fault in
causing the mishap. Hence, D1’s stance was not incredible or
unreasonable. It is to be noted that the I.O had failed to summon P
who had ridden without a valid motorcycle license. His decision to
summon only D1 did not have any significant bearing on the
determination of liability in this case and most certainly, did not bind
the trial judge in arriving at a proper finding based entirely on the
evidence before him. He seemed to be guided by the established
principle that in a claim for negligence arising out of accidental harm,
the burden was wholly on the plaintiff to prove affirmatively that the
harm was caused by the defendant’s negligence as alleged and the
defendant was not required to disprove the allegation against him.
[6] As rightly submitted by D/C, P/C’s reliance on the case of
Murugan v. Lew Chu Cheong [1980] 2 MLJ 139 to support his
contention that D1 should be held wholly or substantially liable was
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untenable as the trial judge in the instant case had made a positive
finding that D1 had not cut across the lawful path of P.
[7] On the above grounds, I was satisfied that there was no
error of law or fact in the learned SCJ’s finding on liability which was
essentially a finding of fact based on the evidence adduced and
wholly correct inferences drawn from the relevant facts. He had
referred to established principles in arriving at a proper conclusion
when confronted with conflicting versions, particularly the importance
of considering the silent evidence, such as the sketch plan,
measurements and traces of the accident at the scene, in resolving
the conflict. On reviewing his evaluation of the evidence, including
assessment of the witnesses’ testimonies and their credibility, he
could not be said to have erred in principle or misdirected himself in
making the finding. I, therefore, held that no grounds were shown by
the appellant that would warrant interference with his decision on
liability.
Quantum:
General damages
[8] The awards made by the learned SCJ for pain and suffering
are these:
1) Severe head injury with skull fracture in the left frontal and
right orbital intracranial bleeding of subdural types
P/C submitted that this award should be raised to
RM150,000.00 by reference to only one comperative
award, Paramasivam a/l Savy Peruman v. Ibrahim bin
Mohd Amin & Anor 2008 l PIR 10 where the sum sought
was awarded. He emphasized the Glasgow Coma Scale
(‘GCS’) reading of 6/15 which indicated severe head
injury and that P also suffered radial nerve palsy apart
from other behavioural problems. The learned SCJ,
however, considered the evidence that P had made good
recovery as at the time of trial without any signs of serious
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disabilities. P had no doubt sustained severe head
injuries, but were the disabilities of such a nature that
justified making an award in the region of RM100,000.00
– 150,000.00? Apart from reference to the above case
P/C had not shown justification for the amount claimed
based on the trend of awards for head injuries of this
nature. Comparative awards cited by the learned SCJ
and P/C showed awards well within the RM50,000.00
range for fractures to the head with similar disabilities. In
considering the recovery of P from the trauma, he not
only relied on his own observation of P at the trial 3 years
thereafter but also the findings in P’s specialist report
itself regarding the residuals. The question of recovery
was indeed a relevant factor to assess the current state of
the disabilities that P had to endure. As P did not suffer
‘severe brain damage’, he considered the award sought
by P/C to be excessive and unreasonable. Granted that
the present award could justifiably have been higher in
the range of RM50,000.00 – 80,000.00, but based on the
trend for similar injuries and disabilities coupled with the
findings of P’s own specialist, I did not think that the
award was so manifestly or unreasonably low that the
learned SCJ could be considered to have erred in
principle in making the assessment.
2) Closed fracture base of 3rd metatarsal bone and 5th
metatarsal bone left foot - RM6,000.00
This was a global award after having accounted for
overlapping. It was certainly a correct approach taken for
similar injuries to the same part of the body. [See Tan
Cheong Poh v. Teoh Ah Keow (1995) 3 MLJ 891]. The
award was only RM2,000.00 less than that suggested by
P/C based on a separate assessment for the 2 fractures
without considering overlapping. The learned SCJ was
not wrong in making a global award that could not be
considered extremely low.
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3) Closed fracture lower 1/3 left fibula
An award of RM11,000.00 was made as against
RM13,000.00 suggested by P/C and RM10,000.00
suggested by D/C. Comparative awards cited by counsel
and the Guidelines showed that the usual award ranged
anywhere between RM10,000.00 – 13,000.00. Hence, the
award made by the SCJ cannot be regarded as being
extremely low so as to justify being set aside.
4) Scars
An award of RM2,000.00 was given based on cases cited
by D/C that showed the trend for this residual. This
award was not challenged by P/C in this appeal as well as
in the court below.
[9] In regard to the appellate court’s role in deciding whether the
awards for general damages made by the trial judge should be
maintained or set aside, the salutary principle is that disturbance is
justified only in certain exceptional circumstances. I was convinced
that these circumstances did not exist in the present assessment by
the learned SCJ. Whether the Appeal Court would have arrived at
different figures was an irrelevant consideration. The leading case in
point is Topaiwah v. Salleh [1998] 1 MLJ 284 where the Federal
Court held:
“So far as this court is concerned we should, to paraphrase
Greer L.J. in Flint v. Levell [1935] 1 K.B. 354, 360 be
disinclined to reverse the finding of a trial judge as to the
amount of damages merely because we think that if we had
tried the case in the first instance we would have given a
lesser sum. To justify reversing him, we should be
convinced that he acted upon some wrong principle of law,
or that the amount awarded was so extremely high or so
very small as to make it an entirely erroneous estimate of the
damage. The assessments which the courts have made
over the years form some guide to the kind of figure which is
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proper and which the appellate court will follow in the light of
the special facts of each particular case.”.
Special damages
[10] Before deciding on this claim, the learned SCJ reminded
himself of the settled law that the burden of proof in an action for
personal injuries was on the plaintiff to prove the items of claim under
special damages strictly. He correctly referred to leading authorities
on this point like Sum Wan Hoong v. Kader Ibramshah [1981] 1 MLJ;
Guan Soon Tin Mining v. Wong Fook Kam [1969] 1 MLJ 99 and Sum
Kum v. Devaki Nair & Anor (1969) MLJ 74.
[11] Having regard to the relevant principles on the requirement
of strict proof, the learned SCJ found that P had not produced the
necessary material evidence to satisfactorily prove the disputed
items, total loss of earnings and partial loss or earning. He found it
insufficient for P to rely merely on his own oral evidence without any
supporting evidence whatsoever in the form of essential employment
records and evidence from his employer. I agree that to satisfy the
onus of proof placed on him, the supporting evidence should have
been produced except where a reasonable explanation for its
absence is advanced.
Total/Actual Loss of Earnings
[12] This was for the medical leave period of 2 months after the
accident. In deciding whether this claim was proved, the learned SCJ
took these factors into account. First, that P had been in the hospital
intensive care unit (ICU) for only 6 days which did not indicate that his
injuries were severe. Second, that as proof of his employment and
income, he had only produced a photocopy of his salary slip without
producing the original or the maker. As it was marked for
identification only without being admitted into evidence, no reference
could be made to it or reliance placed on it. Second, his employer,
who was a vital witness, had not been called to confirm his evidence
regarding the break in his employment and his income at the material
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time. Third, that he had not produced any other essential documents
to prove his employment, specifically his Singapore work permit and
passport to show daily entry into Singapore where he claimed he was
employed. Fourth, that by reason of failing to call his employer P had
failed to prove his assertion that upon returning to work after 2
months and continuing work for 3 months, the employer had
terminated him for non-performance due to his medical condition.
There was absolutely no documentary evidence to support this
assertion. The SCJ found the reasons given by P for not continuing
with the employment to be unproven and doubtful. The learned SCJ
concluded that the failure by P to produce his employer had resulted
in him not being able to prove his employment, income and the
validity of the reasons advanced for termination of employment. I
found no error in this conclusion that was based on settled principles
of law expressed in leading authorities that he referred to. [ See
Jaafar Shaari & Siti Jama Hashim v. Tan Lip Eng & Anor [1997] 4
CLJ 509 and Sum Kam v. Devaki [1964] 30 MLJ 74 ]. Hence, his
decision to dismiss this item of claim was justified and not erroneous
considering the insufficiency of the supporting evidence.
Partial Loss of Earnings/Loss of Earning Capacity
[13] In regard to this claim, the learned SCJ took into account a
serious conflict in P’s own evidence regarding the nature of his
employment. While he testified that he was now employed as a lorry
attendant, his specialist/neurologist report states that he was
currently a lorry driver based on his own history. When this was
pointed out to him, he admitted that it was true. Apart from his own
testimony, P adduced no evidence whatsoever, documentary or
otherwise, attesting to his present employment and income level.
The onus was on him to prove convincingly that his income had
dropped significantly compared to the pre-accident period in order to
succeed in this claim. Further, that there was a real and substantial
risk that his income earning capacity would be jeopardized in the
future by reason of the disabilities occasioned by the accidental
injuries. The medical evidence produced did not support this
possibility.
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[14] It agreed with the Respondent’s submission that, in the
context of the present claim, being employed as a lorry driver is far
different from just being an attendant. It was clear evidence that at
present the disabilities were not so severe as to interfere with his
capability to work and earn as hitherto.
[15] The bottom line is that it is for P to satisfy the court that he
had suffered a loss of earning capacity which “arises where there is a
residual risk that the plaintiff might be thrown out of work altogether at
some future date.” [ Ngooi Ku Siong v. Aidi Abdullah [1985] 1 MLJ 39
F/C]. The learned SCJ found that in the absence of evidence from
P’s employer, there was absolutely no evidence to prove this
element. He also held that for the failure to call his employer as a
witness without explanation an adverse inference should be drawn
against him under s. 114(g), Evidence Act, 1950. I did not see any
error in the approach taken to invoke s. 114(g) which was justified on
the facts.
Conclusion
[16] For the aforesaid reasons, I held that the learned SCJ’s
decision, which was arrived at after a proper analysis and
consideration of the material evidence could not be said to be
incorrect or a misdirection. The onus, which is a heavy one, was on
the Appellant to show that there were grounds to interfere with the
decision arrived at after having taken a proper approach. He had not
taken into account irrelevant facts or made wrong inferences but only
made factual findings that P had failed completely to discharge the
onus of proof in regard to these substantial claims. In concluding, I
held that he had not erred in fact, law or principle that would warrant
interference on appeal. The law on the role of the appellate court
relating to factual findings by the trial court is established. Reference
has merely to be made to the Federal Court judgment of China
Airlines Ltd. v. Maltran Air Corp Sdn. Bhd. & Another Appeal [996] 3
CLJ 163 where it was held:
“It is a settled principle of law that in an appeal, where facts
have to be reviewed, it is undesirable that the factual
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findings of the Court below be disturbed by the appellate
Court unless it appears that those findings are clearly wrong;
and it is even more undesirable to do so where the
conclusions reached, to a large extent, depended on the
credibility of the witnesses and the impression formed by the
Court which has seen them and judged their honesty and
accuracy.”.
Decision
[17] Having found no valid grounds to interfere with the decision
of the trial court of both issues raised – liability and quantum – I
upheld the whole decision appealed against and dismissed this
appeal with costs.
Dated: 19th August 2011.
( GUNALAN A/L MUNIANDY )
Judicial Commissioner
High Court
Johor Bahru.
Mr. T. Balaskandar …………… for the Plaintiff
Messrs Zaman & Associates
Advocates & Solicitors
Johor Bahru.
Miss Christina Jacob ..………… for the Defendants
Messrs Lawrence Pereira & Partners
Advocates & Solicitors
Johor Bahru.
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