Zulkefli Makinudin JCA:

[1] This is an appeal by the plaintiff against the decision of the learned judge of the High Court at Penang who on an appeal by the plaintiff in respect of quantum only had affirmed the award of damages made by the learned judge of the Sessions Court and dismissed the plaintiff's appeal. At the Sessions Court the defendant had been found totally liable for the accident.

[2] Mr. Brijnandan Singh Bhar, learned counsel for the plaintiff before the High Court on appeal and again before us had argued on two main grounds as follows:

(a) that the award for pain and suffering amounting to RM28,000 was manifestly low.

(b) that there should have been an award for loss of earning capacity.

Pain And Suffering

[3] In the first medical report produced for the plaintiff it is stated that as of the date of accident that is 7 April 1996, the plaintiff was in hospital for 18 days. The injuries were as follows:

(1) Closed supracondylar fracture of left femur with comminution;

(2) Closed fracture mid-shaft of left tibia;

(3) Old fracture of upper 1/3 left tibia.

Management:

(1) Plating of left femur with bone grafting done under spinal anesthesia after 16 days of admission to hospital;

(2) Fracture of left tibia was managed conservatively.

[4] The plaintiff also produced the medical report of the orthopedic specialist who examined the plaintiff on 18 July 1997 and the findings of the specialist were:

(1) Although walked with a limping gait, able to walk unaided;

(2) Left leg was 4cm shorter than the right;

(3) Thigh girths when measured 10cm from the upper poles of the knee caps showed the right to be 43cm and the left 40 1/2cm indicating wasting of the muscles of the left leg.

(4) Scars:

(a) 23cm long scar over the lateral aspect of the left lower thigh;

(b) 7cm bone graft donor scar over the anterior aspect of the right iliac crest.

(5) Swelling around the knee joint with bow legged deformity of 10° of the knee joint with a range of movements of flexion being 0°-80° (Normal: 0°-150°).

(6) Whilst he was able to stand on one leg he was unable to squat.

(7) The fracture of the femur has united with angulation and the shortening. There is a plate and screws across the fracture site.

(8) The cost of removal of the plate and screws with hospitalization will be RM3,000.

(9) Inevitable that he would gradually develop osteoarthritis of the knee joint.

[5] Subsequent to the above earlier report, the same orthopedic specialist gave another report about a year later wherein he confirmed that about 1.5 to 2cm of the shortening was due to the old fracture. The said orthopedic specialist opinioned that the accident in question had left the plaintiff with a shortening of 2 to 2.5cm.

[6] At the trial before the Sessions Court, the learned Sessions Court Judge made the award of damage for pain and suffering as follows:

(1) closed supracondylar fracture of the )

left femur with comminution )

(2) closed fracture of the mid shaft of )

the left tibia with 4cm shortening ) RM25,000

(3) 23cm scar over the lateral aspect )

of the left lower thigh ) RM 3,000

RM28,000

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[7] In the Sessions Court, learned counsel for the plaintiff submitted for an award of RM50,000 for pain and suffering without citing any authorities. The learned Sessions Court Judge relied on the case of Balakrishnan s/o Kunjamboo Nair v. Savastine Anthony s/o Francis [1991] 1 CLJ 503; [1991] 2 CLJ (Rep) 327 wherein for a fracture of the femur with 4cm shortening the court had awarded RM20,000.

[8] Before the learned judge of the High Court and before us in this appeal, Mr. Brijnandan submitted that the court must accept the man as he is, that is, that he is suffering from 4cm shortening of the left leg and that the court ought to make an award on that basis. However, the learned judge found that it was not a fair submission to make and went on to state that a tort-feasor is only liable for the actual and related consequential suffering occasion to the plaintiff