The appellate court can only interfere with trial court findings if there is a fundamental misdirection; damages must restore the victim's pre-accident position.

JUDGMENT

Rozana Ali Yusoff J:

A. Introduction

[1] There are two appeals before this court, arising from the same civil suit of PB-A53KJ-273-07/2020 which consists of Appeal No PA-12B12-09/2022 and Appeal No PA-12B-12-09/2022. These two Appeals were heard and were disposed together.

[2] There is no dispute on the liability that the Defendant is 100% liable for the Plaintiff's injuries. Both parties are dissatisfied with parts of the quantum awarded by the learned Session court Judge (SCJ).

[3] Parties will be referred as they appeared in the Session court.

B. Facts Of The Case

[4] On 19 January 2018 at or about 6.15 p.m., the Plaintiff was riding his motorcycle with registration No VAV 5902 along Jalan Sukun while the Defendant was riding his motorcycle with registration No PDR 547. The Defendant who was coming out of the housing estate lane on the left, had turned right and blocking the Plaintiff's path, who was moving straight on the main road. As a result, both motorcycles collided where the Plaintiff suffer injuries and claimed for general damages, special damages, interest and costs.

[5] As to the quantum, the learned SCJ having taken into consideration of both parties' submissions, medical reports and Compendium of Personal Injury Awards 2018, awarded the following:

[a] General damages of RM87,000.00 comprising of:

I. RM5,000.00 - left foot superficial laceration

II. RM10,000.00 - 22 x 2cm ugly scars over left knee

III. RM10,00000 - bone grafting

IV. RM7,000.00 - muscle wasting left thigh and left calf

V. RM40,000.00 - fracture of left tibia plateau with disabilities

VI. RM5,000.00 - future osteoarthritis

VII. RM10,000.00 - pain and suffering in future operation

[b] Special damages of RM96,694.00 which consist of RM77,074.00 as damages for loss of earning. The breakdown of the calculation is as below: -

I.Net profit in 2017 = RM28,000.00

II. Net profit in 2019 = RM6,980.00

III. (RM28,000.00 - RM6,980.00) x 5.5 years = RM115,610.00

IV. RM115,610.00 x 1/3 contingencies deduction = RM38,536.00

V. Total = RM115,610 - RM38,536.00 = RM77,074.00

[c]Interest and cost according to the scale.

[6] Both parties appeal against the decision of the learned SCJ. The appeals are as follows:

C. PA-12B-12-09/2022

[7] The appeal is by the Defendant regarding the finding of quantum on the general damages and Plaintiffs loss of earning. The Defendant appeal on the award on general damages namely (i) RM5,000.00 - left foot superficial laceration, (ii) RM40,000.00 - fracture of left tibia plateau with disabilities and (iii) on the special damages namely RM77,074.00 as damages for loss of earning.

D. PA-12B-13-09/2022

[8] The Appeal by the Plaintiff regarding the finding of quantum on the Plaintiff's loss of earning and the deduction of 1/3 contingencies from the award of loss of earning amount RM77,074.00.

E. Decision

[9] In addressing this appeal, I am mindful the case Sivalingam Periasamy & Anor; 1995 MarsdenLR 597 ; [1996] 4 CLJ 545; [1996] 3 AMR 3506, where the court of Appeal held:

"It is trite law that the appellate court will not readily interfere with the findings of fact arrived at by the trial judge court to which the law entrusts the primary task of evaluation of the evidence. However, the appellate court has a duty to intervene where a trial court has so fundamentally misdirected itself, that one may say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. "

[10] In considering the award for the damages, I am guided by the Federal court decision in the case of Yang Salbiah & Anor v. Jamil Harun; 1981 MarsdenLR 383 where the Federal court held that -

"It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in but for the accident. The damages must be fair, adequate and not excessive.".

[11] Having said the position above, I will deal with both of the appeals accordingly.

[12] Appeal No PA-12B-12-09/