Appellate courts may only interfere with the assessment of damages if they find it legally erroneous or excessively disproportionate.

Introduction

[1] This is an appeal brought by the Appellants/Defendants against the judgment of the Butterworth Sessions Court dated 1 October 2015 in respect of the award of general damages to the Respondent/Plaintiff pursuant to a road accident.

[2] The road accident involved the collision between the motorcycle bearing registration no PDA 1946 ridden by the Respondent and the motorcycle bearing registration no PJD 5303 ridden by the Second Appellant early in the morning of 26 August 2012 at about 6.15 am.

[3] In the sessions Court, the parties agreed that the Respondent and the Second Appellant were each equally negligent in having caused the accident. Consequently, the amount of damages compensable by the Appellants to the Respondent assessed on a 100% liability basis would be halved.

[4] Thereafter the learned sessions Court judge proceeded to assess the quantum of damages claimed by the Respondent and awarded, inter alia, general damages amounting to RM 82,000 to the Respondent assessed on a 100% liability basis.

[5] The Appellants were dissatisfied with the aforesaid award of general damages and have on 9 July 2015 filed the notice of appeal to the high Court. They filed their memorandum of appeal on 28 July 2015 and an additional memorandum of appeal on 9 December 2015.

[6] After reading the written submissions filed by the parties, I heard counsel on 19 February 2016 and thereafter adjourned the matter for decision.

[7] I now provide hereinbelow my decision and the supporting grounds thereof.

Contentions And Finding

[8] The RM 82,000 general damages award of the sessions Court comprises the following:

(i) fracture distal 1/3 right tibia fibula and 3rd proximal fibula: RM 38,000;

(ii) right shoulder subluxation and fracture of humerus: RM 33,000;

(iii) multiple scars: RM 4,000;

(iv) laceration and bone expose: RM 4,000; and

(v) abrasion: RM 3,000.

[9] In the memorandum of appeal, the Appellants contended that the sum awarded for all items (i) to (v) are excessive. Moreover by the additional memorandum of appeal, the Appellants contended that the award in item (ii) for the fracture of the humerus is without foundation.

[10] Apposite to the Appellant's contentions, the Respondent replied that the award of the learned sessions Court judge is correct and fair.

[11] The law on appellate intervention in respect of the quantum of damages awarded in motor vehicle accident cases is succinctly set out in the following federal Court judgments of Azmi CJ (Malaya) (later LP) in Topaiwah v. Salleh , :

"...so far as this Court is concerned we should, to paraphrase Greer LJ in Flint v. Lovell [1935] 1 KB 354 be disinclined to reverse the finding of the trial judge as to the amount of damages merely because we think that if we had tried the case in the first instance we should have given a lesser sum. To justify reversing him, we should be convinced that he acted upon some wrong principle of law, or that amount awarded was so extremely high or so very small as to make it entirely erroneous estimate of the damage. The assessments which the Court have made over the years form some guide to the kind of figure which is proper and which the appellate Court will follow in the light of the special facts of each particular case..."

as well as that of Gill FJ in United Plywood and Sawmill Ltd v. Lock Ngan Loi , :

"As has been said again and again, the assessment of damages in cases of personal injury is one of the most difficult things for either a judge in the first instance or a Court of Appeal. When a man has lost his arm there is no sum in the world that can in the tru