The court affirmed that special damages must be strictly proven, and adjustments to awarded damages were made to reflect the 2nd Appellant's actual injuries and merits of claims.

[1] This is the Appellants' appeal against part of the decision of the learned Sessions' Court Judge ("SCJ") after trial at Kota Kinabalu given on the 15 October 2015 ("the said judgment").

[2] The Respondent has also filed a cross-appeal against the said judgment.

Brief Facts

[3] The brief facts of the case are as follows:-

1. The 1st and 2nd Appellants' claim arose from a collision between the 1st Appellant's vehicle, namely, an Isuzu TFR pickup truck bearing the registration No SA 7972-X, driven by the 2nd Appellant at the material time and the Respondent's vehicle, namely a Proton sedan car bearing the registration No SA 7286-H driven by the Respondent at the material time.

2. On 2 July 2011 at about 10.15pm, the 2nd Appellant was driving the 1st Appellant's vehicle along Papar-Penampang Road from Papar towards Dongonggon. At the material time, the Respondent's vehicle, driven by the Respondent was driving towards Papar on the opposite direction of the Road.

3. As a result of the collision, both vehicles ended up in the ditch on the same side of the road.

4. The Appellants claimed that the accident was caused by the Respondent when the Respondent attempted to overtake a vehicle, during which the Respondent encroached the double white line of the road and into the 2nd Appellant's right of way immediately before the collision. The 2nd Appellant immediately swerved to the left of his lane onto the shoulder of the road to avoid the Respondent's vehicle but the Respondent nevertheless collided with the 1st Appellant's car.

5. The Respondent however maintained that at the material time, the Respondent was attempting to avoid running over a stray dog which had suddenly ran across the road and swerved his vehicle onto the 2nd Appellant's path. The Respondent further argued that the 2nd Appellant had failed to take precautionary action to avoid the Respondent prior to the collision and that there was contributory negligence on the part of the 2nd Appellant as a result.

6. The Appellants claimed for the following:-

a) Cost of repairs of the 1st Appellant's vehicle in the sum of RM11,876.02;

b) Personal injury suffered by the 2nd Appellant in the sum of RM28,500.00;

c) Loss of use of the 1st Appellant's vehicle in the sum of RM349,500.00; and

d) Punitive/exemplary damages in the sum of RM250,000.00.

Decision Of The Learned SCJ

[4] The action was tried before the Sessions Court at Kota Kinabalu on 5 August 2015 and 6 August 2015. The learned SCJ had found the Respondent to be 100% liable for the accident and awarded the Appellants damages as follows:-

a. costs of repairs in the amount of RM2,199.36;

b. towing expenses in the amount of RM550.00;

c. pain and suffering in the amount of RM5,000.00; and

d. loss of use of vehicle in the amount of RM41,940.00 [RM30.00 (per day) x 1,398 days].

[5] However, the learned SCJ did not award any punitive/exemplary damages against the Respondent.

The Appeal And Cross Appeal

[6] The Appellants appealed against the decision on the quantum of damages in respect of costs of repairs, pain and suffering, loss of use of vehicle and the non-granting of punitive/exemplary damages against the Respondent while the Respondent cross appealed against the decision on the quantum of damages awarded under loss of use of vehicle and against interest and statutory interest awarded on whole judgment sum of RM49,689.36.

[7] Neither parties are appealing on the issue of liability.

Submission Of The Appellants

Cost Of Repairs

[8] It is submitted that the damage to the 1st Appellant's vehicle is a direct result of the collision caused by the Respondent, which the learned SCJ had ruled that the Respondent was 100% liable. Ac