The appellate court mandated consideration for contingencies in computing awards for damages, establishing principles for adjusting awards for future costs.

Darryl Goon Siew Chye JC:

[1] This was an appeal against the quantum of damages awarded by the Sessions Court against the Appellant in a judgment handed down on the 27th of March 2017. The appeal was confined to the award of the sum of RM1,369,883.60 by the learned Sessions Court Judge in respect of a prosthesis for the Respondent. The other sums awarded as damages were not challenged.

Background

[2] In the afternoon of the 31st of May 2017, while riding on his motorcycle, the Respondent, who was in his mid-fifties, met an accident with a motorcar driven by the Appellant. As a consequence of the accident, the Respondent suffered severe injuries resulting in his left leg being amputated above the knee.

[3] Having found liability on the part of the Appellant, the Sessions Court then addressed the issue of damages. Germane to the appeal at hand was the cost and expense of an appropriate prosthesis for the Respondent.

The Evidence Of The Experts

[4] Two experts were called to testify as to the appropriate prosthesis for the Respondent. The expert who was called by the Respondent to testify was one Cik Nadzirah binti Abdul Razak. The Appellant's expert was one Mr Santosh Kumar Prasad.

[5] Cik Nadzirah binti Abdul Razak, who was a Clinical Prosthetist & Orthotist with Endolite Asia Sdn Bhd, testified as SP4. SP4 testified that she had examined the Respondent on 31 October 2017 and pursuant thereto, a Prosthetic Report dated 1 November 2017 (Exhibit P14) was prepared. SP4 testified that the Respondent fell within, what she referred to as, a "Category 3 Amputee". She explained that there are five categories of amputees and a Category 3 Amputee (or "level K3 amputee") was one who is capable of multiple speeds of walking with a near normal life style. Having examined the Respondent, SP4 recommended a trans-femoral prosthesis which comprises a suspension system, socket, knee rotator, knee joint, various above the knee ("AK") adaptors, foot cover and cosmetic cover A trans-femoral prosthesis is an artificial limb that replaces a leg missing from above the knee and it comprises those several component parts mentioned.

[6] As for the appropriate trans-femoral prosthesis, SP4 recommended the Endolite Linx for the Respondent. SP4 testified that the, "Endolite Linx knee and foot synchronize with each other and adjust alignment in a dynamically changing environment, similar feature as how the biological knee and foot coordinate with the brain. Microprocessor controlled knee and foot system will help Mr Zakaria bin Awang to walk much better than using the mechanical prosthetic components in terms of gait performances and security." SP4 explained the functions of the various part of the recommended prosthesis and testified that in the case of the expected usage by the Respondent, whom she considered an active amputee, the component parts that make up the prosthesis would have a life span of 3 years. In her recommendation, SP4 catered for the future costs of several replacements of the various components of the prosthesis allowing as well, for a 3% to 5% increase in price over the years. When quantified, the total amount to cater for the recommended prosthesis was RM1,364,001.64, inclusive of Goods and Services Tax.

[7] Mr Santosh Kumar Prasad who testified as SD1 was a Certified Prosthetist & Orthotist. He was a senior consultant and clinical head cum workshop manager with Pusat Anggota Tiruan Central Sdn Bhd SD1 also prepared a prosthetic report for the Respondent and, like SP4, he placed the Respondent as a category 3 amputee or a Level K3 amputee (High Impact Level). This category, he testified, denotes