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2020 MarsdenLR 1031
HIGH COURT MALAYA KUALA TERENGGANU
NIK SHAMERUL HAFIZI NIK MAZLAN & ANOR – Appellant
Versus
KHAIRULANWAR NAWI & ANOR – Respondent
[Civil Appeal No: TA-12B-3-01/2020]
The court held that quantification of damages in personal injury cases is based on judicial discretion guided by established principles, with appellate interference requiring compelling evidence of clear error.
Headnote:(A) Road Traffic Accident – Jurisprudence on quantum of damages – Principles governing appellate review of damages – The court reaffirmed that damages awards must not be reversed merely based on opinion differences; substantial evidence of loss must be presented for higher awards. (Paras 8, 9)
(B)
Assessment of damages – The court held that the trial judge’s awards for fractures were justified based on comparative case law and existing medical evidence; no error in law found in lower court's assessment. (Paras 12, 19)
(C)
Provisional damages for prosthetic leg – The court emphasized the necessity for appellant to prove their damages claim, considering both expert testimonies before affirming lower court's decisions. (Paras 24, 29)
Facts of the case:
Appellants sustained injuries in a road accident; the Sessions Court awarded damages which the Appellants challenged as insufficient for specific injuries.
Findings of Court:
The court upheld the trial court’s damages awards as reasonable based on prevailing legal principles and case comparisons.
Issues
: The Appellants disputed damages awards for specific injuries and the adequacy of prosthetic costs.
Ratio Decidendi:
The court reiterated the principle that appellate courts should not interfere with lower courts' award amounts absent clear errors in application of law or judicial discretion.
Result:
Appeal dismissed.
JUDGMENT
Introduction
[1] This appeal is in relation to a road accident which occurred on 29 July 2016 at around 8.00 pm at KM 24, Jalan Dungun/Bukit Besi, Dungun involving the motorcycle with plate number TR 8365 ridden by the Appellants and a four-wheel drive car with plate number NAU 2923 driven by the 1st respondent.
[2] The Sessions Court ruled in favour of the Appellants and had ordered the respondents to pay the 1st plaintiff the total sum of RM163,000.00 as general damages and for the respondents to pay the 2nd plaintiff the total sum of RM130,500.00 as general damages and the cost of prosthetic leg for the further sum of RM330,295.00.
[3] Dissatisfied with the said award of damages, the Appellants had filed the appeal herein.
Background Facts
[4] The Appellants had filed a civil suit against the respondents in respect of the road accident which occurred on 29 July 2016 which had caused the Appellants to suffer injury and damages.
[5] The Sessions Court had on 12 January 2020 held that the respondents in Civil Suit No: TA-A53KJ-276-09/2018 were 100% liable in causing the accident and had made the following orders:
General Damages
(i) To be paid by the respondents to the 1st plaintiff:
a) RM36,000.00 for open comminuted fracture of proximal 1/3 of right femur;
b) RM38,000.00 for open comminuted fracture midshaft of right tibia and fibula;
c) RM20,000.00 for close fracture right tibia plateau (Schatzker 5);
d) RM6,000.00 for multiple deep laceration wound of the right forearm;
e) RM6,000.00 for partial extensor tendon cut of right middle finger;
f) RM3,000.00 for soft tissue injury;
g) RM10,000.00 as compensation for pain and suffering due to future surgery;
h) RM5000.00 for muscle wasting;
i) RM25,000.00 for anterior cruciate ligament laxity;
j) RM14,000.00 for multiple scars;
(ii) To be paid by the respondents to the 2nd plaintiff:
a) RM90,000.00 for above knee amputation;
b) RM30,000.00 open fracture midshaft right femur;
c) RM3,500.00 for laceration wound on the forehead;
d) RM7,000.00 for loss of consciousness and retrograde amnesia
Special Damages
Respondents to pay the 1st plaintiff the total sum of RM1,590.00 for costs of medical report, orthopaedic specialist report and JPJ search, and the respondents to pay the 2nd plaintiff the total sum of RM635.00 for costs of medical report and purchase of walking stick and wheelchair and a further sum of RM329,660.00 for the cost of prosthetic leg.
[6] The Appellants had however appealed against the quantum of damages awarded by the learned SCJ claiming it to be insufficient and/or inadequate considering the injuries suffered by the plaintiffs. The Appellants appeal was confined to three particular head of damages as follows:
(i) Open comminuted fracture of proximal 1/3 of right femur where the Appellants submitted that RM36,000.00 awarded by the learned SCJ to the 1st Appellant was insufficient for the said injury and that RM70,000.00 ought to be awarded for the said injury instead;
(ii) Closed fracture right tibia plateau (Schatzker 5) where the Appellants contended that RM35,000.00 ought to be awarded for the said injury caused to the 1st Appellant; and
(iii) The cost of prosthetic leg where the Appellants claimed that the learned SCJ had erred in his decision on the following ground:
(a) that the learned SCJ in determining the best prosthetic leg prescription for the 2nd Appellant had relied on the report of SD3 who was a rehabilitation physician and not a prosthetist;
(b) that the learned SCJ in considering the damages to be awarded had relied on the quotation of SD2 who did not conduct any examination on the 2nd Appellant in prescribing the prosthetic leg for the 2nd Appellant;
(c) that there was only one prosthetic quotation which had been marked as Exhibit ie, exh P9;
(d) That SD2's expertise was never proven during trial.
Issues To Be Determined
[7] In my view, issues arose for the determination of this Court as follows:
(i) Whether the learned SCJ had erred in determining the q
