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2021 MarsdenLR 1844
HIGH COURT MALAYA SHAH ALAM
LIM SIL HAO – Appellant
Versus
SELVARAJAH PERUMAL – Respondent
[Civil Appeal No: BA-12B-169-12/2019]
Damages in tort law are compensatory rather than punitive, requiring equitable assessment through comparison with similar past cases while considering inflation.
Headnote:(A) Civil Law Act 1956 – Section 28A – Tort law – Appeal against quantum of damages – The court found that general and special damages are compensatory, not punitive, aiming to restore the Plaintiff's position pre-accident – The court noted adjustments in awards must reflect reasonable comparisons with similar cases (Para 9).
(B) The assessment of damages involves considering inflation and precedent awards.
(C) The court upheld certain awards for specific injuries but modified others based on evidential support, including a definitive calculation for future earnings (Paras 11-39).
Facts of the case: The Plaintiff sustained multiple injuries from a motorcycle accident involving the Defendant. The Sessions court initially awarded damages, which both parties contested on grounds of excessiveness and insufficiency (Paras 5-8).
Findings of Court: The appellate court affirmed most awards but revised those for hospitalization costs and future earnings according to statutory guidelines (Paras 51-52).
Issues: The main questions addressed included the adequacy and justification of damage awards regarding liability and quantum (Para 7).
Ratio Decidendi: The court ruled that awards must provide just compensation, with careful consideration of inflation and prior cases guiding the assessment (Para 11).
Result: The appeal and cross-appeal on quantum are partially allowed, with adjusted awards as specified.
IN THE COURT OF APPEAL OF MALAYA
APPEAL NO: [To be inserted]
IN THE MATTER OF THE DECISION OF THE HIGH COURT OF MALAYA AT SHAH ALAM DATED 01-06-2021 IN CIVIL APPEAL NO: BA-12B-169-12/2019
BETWEEN
LIM SIL HAO
(NRIC No: [To be inserted])
(Plaintiff in the Court Below)
... APPELLANT
AND
SELVARAJAH PERUMAL
(Defendant in the Court Below)
... RESPONDENT
MEMORANDUM OF APPEAL
The Appellant appeals against the decision of the High Court of Malaya at Shah Alam dated 01-06-2021 whereby the learned High Court Judge varied the Sessions Court's award by reducing the hospitalisation and medical fees incurred by the Appellant from RM52,172 to RM17,390. (!) (!)
Grounds of Appeal
-
The learned High Court Judge erred in law and in fact in holding that the Appellant failed to provide sufficient evidence to justify the full recovery of private hospitalisation and medical fees of RM52,172 incurred at Sri Kota Specialist Medical Centre, and in consequently reducing the award to one-third (RM17,390). (!)
(!) (!) (!) -
The learned High Court Judge misdirected herself by applying an overly stringent test of reasonableness that required the Appellant to prove on a balance of probabilities that the specific treatment for his open fracture distal third of right tibia and fibula (with exposed bone) was unavailable at Banting Hospital, disregarding the Appellant's right to seek prompt and effective treatment post-accident. (!) (!) (!) (!) (!) (!) (!) (!)
-
The learned High Court Judge erred in failing to undertake a holistic assessment of the circumstances, including the severity of the Appellant's injuries requiring orthopaedic referral and admission, his decision to discharge himself against medical advice from Banting Hospital to obtain specialist care at a private facility, and the fact that such choice was reasonable given the need for immediate and specialised management of an open comminuted fracture. (!) (!) (!) (!) (!) (!) (!) (!) (!)
-
The learned High Court Judge erred in holding that the Appellant's insurance coverage alone could not justify the full claim, overlooking that the test of reasonableness permits consideration of myriad circumstances such as urgency, availability of expertise, and the Appellant's condition immediately post-accident, without imposing inflexible rules or requiring a cost-benefit analysis at the time of treatment. (!) (!) (!) (!) (!) (!)
-
The reduction to one-third of the medical fees was inordinately low and wholly erroneous, departing from the discernible trend where full or substantial recovery is allowed for private treatment when justified by the peculiar facts, including the Appellant's transfer for advanced treatment of multiple injuries comprising fracture, laceration with bone exposure, and subsequent complications. (!) (!) (!) (!) (!)
-
The learned High Court Judge erred in relying on principles requiring partial award absent "sufficient reasons" without properly weighing the evidence of the Appellant's hospitalisation from 22 December 2016 to 3 January 2017, including operation costs and follow-up, against the compensatory nature of damages aimed at restoring the Appellant to his pre-accident position. (!) (!) (!) (!) (!) (!) (!)
-
Further or in the alternative, the learned High Court Judge's variation was manifestly excessive in favour of the Respondent, as the full medical costs were specially pleaded, evidenced by receipts totalling RM52,172 (covering hospitalisation, operations, and treatment), and uncontroverted save for the issue of public vs private availability, warranting appellate interference. (!) (!)
Relief Sought
The Appellant seeks:
(a) That the appeal be allowed with costs throughout;
(b) That the High Court order reducing hospitalisation and medical fees to RM17,390 be set aside, and the Sessions Court's award of RM52,172 (or such other sum as this Honourable Court deems fit) be restored;
(c) Such further or other relief as this Honourable Court deems fit.
Dated this [day] day of [month], 2021.
SAMPLED ADVOCATE
Advocate & Solicitor
For the Appellant
[Address]
[Contact Details]
Introduction
[1] For ease of reference, the parties shall be referred to as they were in the court below. Both the appeal and cross appeal before me are by the Defendant and the Plaintiff respectively, against the decision of the Sessions court in a running down action. The Plaintiff's claim is for general and special damages attributed to the negligence of the Defendant.
Background Facts
[2] On 21 December 2016, at about 6.30 pm, the Plaintiff was riding his motorcycle bearing registration number BLD 6785 along Jalan Klang-Banting-Port Dickson when he was collided into by the Defendant who was driving his motor car of registration number WC 9979 D. The collision occurred at the rear portion of the Plaintiff's vehicle. The Plaintiff suffered injuries as a result thereof.
[3] He was brought to the Banting Hospital and treated at the Emergency Department. He was diagnosed to have open fracture distal third of right tibia and fibula, and was referred to the orthopaedic team for further management and admission.
[4] However, he discharged himself the next day on his own accord to seek treatment at Sri Kota Specialist Medical Centre. He was admitted on 22 December 2016 and stayed on for treatment until he was discharged 3 January 2017.
[5] The Plaintiff then filed the instant suit for negligence in the Sessions court. At the conclusion of the trial, on 29 November 2019, the Sessions court found the Defendant to be wholly liable for the accident and awarded general and special damages to the Plaintiff.
[6] The Defendant filed an appeal in respect of both liability and quantum as assessed. The Plaintiff filed a cross appeal on the award of damages. However, before me the Defendant now abandons the appeal in respect of liability. The appeal and cross appeal before me are now confined to the issue of quantum only.
Issues Before This court
[7] The parties are dissatisfied with the Sessions court's award of damages under various heads of claim. The Defendant contends that some of the awards made were manifestly excessive and in excess of any discernible trend of awards made in cases involving similar injuries. The Plaintiff on the other hand contends that the awards in respect of some items were inadequate. In addition, the Plaintiff contends that the Sessions court had erred in refusing to make any award for future loss of earnings and earning capacity.
[8] For ease of reference, the award of the Sessions court, and the respective parties' contention as to the awards are presented in a table form as follows:
The Governing Principles
[9] An award for general and special damages is compensatory in nature, and intended to provide some redress for what the Plaintiff has suffered. It is not intended to be punitive and still less a reward. In Yang Salbiah & Anor v. Jamil bin Harun, the Federal court held:
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.
(See also: Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abd Aziz) v. Kerajaan Malaysia & 2 Ors, ).
[10] In determining the appropriate quantum, the courts have been guided by precedents in comparable cases. The amounts awarded in past cases, which bear reasonable comparison with the case under review, would serve as useful guides. However previous awards would have to be adjusted upwards to take into consideration the fall in the value of money as a result of inflation. (See: United Plywood and Sawmill Ltd v. Lock Ngan Loi , ); Liong Thoo v. Sawiyah & Ors; [1982] 1 MLJ 286; [1981] CLJ (Rep) 171).
[11] I am mindful that the proceedings before me is an appeal against the award of Sessions court. In this regard, guidance on the court's powers on appeal in respect of quantum can be found in the judgment of Gill FJ in United Plywood and Sawmill Ltd v. Lock Ngan Loi ,
