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

1. 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). (!)
   (!) (!) (!)

2. 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. (!) (!) (!) (!) (!) (!) (!) (!)

3. 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. (!) (!) (!) (!) (!) (!) (!) (!) (!)

4. 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. (!) (!) (!) (!) (!) (!)

5. 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. (!) (!) (!) (!) (!)

6. 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. (!) (!) (!) (!) (!) (!) (!)

7. 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]