The appellate court must ensure that relevant considerations are acknowledged in assessing damages, particularly when the plaintiff's condition significantly impacts their suffering.

JUDGMENT

Azmi Abdullah J:

Introduction

[1] For ease of reference the parties will be referred to as they were at the Sessions Court hearing.

[2] This is an accident matter litigated at the Sessions Court whereby the liability has been imputed at 75% against the defendants with the deceased plaintiff being held 25% liable.

[3] As regards quantum, the learned Sessions Court Judge made these awards:

General damages:

a) Severe head injury with fracture base of skull, right temporal bone - RM150,000.00

b) Multiple left facial bone fracture - RM70,000.00

Special damages - RM24,298.35

[4] This Court having heard the appeal by the defendant and after perusing the written submissions of the respective counsels and hearing further oral clarifications made, decided to affirm the decision on liability. However this Court reduced the general damages award to RM111,000.00 with the special damages awarded not being disturbed. Aggrieved by the decision made, now the plaintiff has lodged an appeal to the Court of Appeal only on the issue of general damages after obtaining leave to appeal hence these grounds in explaining the decision made.

Principles Pertaining To Appeal

[5] In coming to its decision this Court has considered the principles laid down in these cases:

i) In Tan Kuan Yau v. Suhindrimani Angasamy , 1985 MarsdenLR 649 ; [1985] CLJ (Rep) 323 wherein it was held by the Federal Court that:

"The principle that should guide this Court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case in particular the amount of the award. In a particular case therefore it is for the appeal Court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that, either there was an omission on the part of the Judge to consider some relevant materials, or he had admitted for purpose of assessment some irrelevant considerations. If the Court is satisfied or convinced that the Judge has acted upon wrong principles of law then it is justified in reversing; indeed, it is its duty to reverse the finding of the trial Judge."

ii) In Topaiwah v. Salleh , 1968 MarsdenLR 345 wherein it was held by the Federal Court that:

"In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted on 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 damages to which the plaintiff is entitled. The assessments which the courts have made over the years form some guide to the kind of figure which is proper and which the Federal Court will follow in the light of the special facts of each particular case."

iii) The case of Paya Terubong Estates Sdn Bhd v. Warisan Sdn Bhd , 1998 MarsdenLR 1782 pronounced that:

"An appellate Court would be reluctant to disturb the primary exercise of discretion. This is because a Court of appeal in a matter such as the present does not possess an original discretion, its initial function being one of review only. However, where, as in the present instance, it is amply demonstrated that the judge in whom the primary discretion is vested has failed to take into account relevant considerations, it is the duty of the appellate Court to say so and to intervene and set matters right by an exercise of its own discretion."

iv) Raja Azlan Shah (CJ Malaya as he then was) in the case of Salbiah & Anor v. Jamil Harun, [1981] 1 MLJ 292 was of the opinion:

"It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in but for the accident. The damages must be fair, adequate and not excessive. A reasoned judgment must therefore be given by the judge, following legal principles and precedents. Other awards