Appellate courts must respect trial court findings unless plainly wrong; interest on damages must be set at 5% per guidelines.

Introduction

[1] For convenience, parties will be referred to as they were in the Kulim Sessions Court.

[2] Mohammad Hafizan bin Abd Rahim (Plaintiff) commenced a civil suit against Rosniza binti Mohamad (Defendant) in the Kulim Sessions Court vide Suit No: A53KJ-93-05/2017.

[3] On 18 December 2020, after careful consideration of the evidence adduced in the full trial, the learned Sessions Court Judge (SCJ) found the Plaintiff and Defendant equally liable for the accident and apportioned liability at 50% each. The learned SCJ awarded damages (on 100% liability) including:

(i) general damages:

(a) skull fracture-left temporal bone RM50,000.00;

(b) brain injury (severe traumatic brain injury/structural injuries) RM120,000.00;

(c) craniectomy, cranioplasty & tracheostomy RM50,000.00

(d) major neurocognitive disorder with behavioural disturbance RM180,000.00

less 10% for overlapping

Total RM 360,000.00;

(ii) pre-trial nursing care at RM 500.00 per month for 115 months in the sum of RM 57,500.00 with interest at 2.5% from date of accident to date of judgment;

(iii) post-trial nursing care at RM 2,500.00 per month for 516 months in the sum of RM 1.29 million without interest;

(iv) loss of income at RM 960.00 per month for 16 years with interest at 2.5% from date of accident to date of judgment.

[4] The claim for loss of prospect of marriage was dismissed.

[5] The Plaintiff appealed against the whole of the decision vide Appeal No: KB-12B-2-01/2021 (P/Appeal) whereas the Defendant crossed-appealed on the issue of liability (D/Cross Appeal). The Defendant also appealed against the same decision on quantum vide Appeal No: KB-12B-1 -01/2021 (D/Appeal).

[6] The Plaintiff passed away on 7 July 2021 from disseminated pulmonary tuberculosis and the cause papers in the P/Appeal were amended on 25 April 2023 to reflect that his mother stepped into his shoes to carry on the appeal.

[7] During the course of the hearing of all the appeals, parties agreed that the award for post-trial nursing care at RM 2,500.00 per month for 516 months in the sum of RM 1.29 million without interest be set aside. In place, parties agreed that the post judgment period of 7 months after which the Plaintiff passed away be taking into account in the award for pre-trial nursing care.

[8] After careful consideration of the cause papers and the written and oral submissions of counsel, this Court decided to:

(i) in respect of P/Appeal - dismiss Plaintiff's appeal and Defendant's cross-appeal on liability; and allow in part Plaintiffs appeal on quantum and dismiss the other grounds; and

(ii) in respect of D/Appeal - allow part of the appeal on quantum by consent and dismiss the others grounds of appeal on quantum.

(a) Allow Appeals 10 And 11 On Liability

[9] The following are the grounds for the decision.

The appeals

[10] In the amended memorandum of appeal, the Plaintiff took issue with the SCJ's decision on the grounds that he erred in fact and law in:

(i) apportioning equal liability for the accident;

(ii) failing to award damages for loss of prospect of marriage;

(iii) allowing a low quantum of damages for pre-trial nursing care; and

(iv) only allowing on 2.5% interest on pre-trial nursing care and loss of future income.

[11] The Defendant's challenge to the SCJ's decision on liability was that he erred in fact and law in apportioning liability. He failed to consider the e