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2023 MarsdenLR 2947
SESSION COURT SEPANG
DEVARAJAN KUNASEKARAN – Appellant
Versus
LEON NGIM CHONG & ANOR – Respondent
[Summons No: BK-A53KJ-74-03/2021]
The court affirmed that compensation for personal injury must restore the injured party to their pre-injury position, requiring careful assessment of damages based on evidence and relevant case law.
Headnote:(A) Personal Injury Law - Assessment of Damages - Road Traffic Collision - Defendants found 90% negligent, plaintiff 10% contributory negligence - Plaintiff awarded RM149,000.00 for general damages and RM18,264.00 for special damages after assessing medical reports and testimonies. (Paras 1-4, 10, 123)
(B) Legal Principles - Compensation aims to restore plaintiff to pre-injury position; assessment of damages requires careful consideration of evidence and past cases for guidance. (Paras 11-12)
(C) Issues - The court addressed the reasonableness of future medical expenses, loss of earnings, and overlapping injuries in awarding damages. (Paras 92-120)
(D) Findings of Court - The plaintiff successfully proved his injuries and entitlements under the law, resulting in a total award with interest and costs. (Paras 123) (E) Ratio Decidendi - The court emphasized the necessity of just compensation and the importance of proving the reasonableness of future treatment costs. (Paras 92-96) (F)
Result: Plaintiff's claims partially allowed with total damages awarded of RM167,264.00 with specified interest rates.
| Table of Content |
|---|
| 1. personal injury claim details (Para 1 , 2 , 3) |
| 2. factual background of the accident (Para 6 , 7 , 8 , 9) |
| 3. assessment of damages (Para 10 , 11) |
| 4. judicial observations on damages (Para 12 , 13 , 14) |
| 5. assessment of specific injuries (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 6. claims for lacerations and abrasions (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31) |
| 7. claims for lung contusion and head injuries (Para 32 , 33 , 34 , 35 , 36 , 37 , 38) |
| 8. assessment of future medical expenses (Para 39 , 40 , 41 , 42 , 43 , 44) |
| 9. claims for special damages (Para 75 , 79 , 81 , 82 , 83) |
| 10. loss of earnings assessment (Para 100 , 106 , 112 , 113 , 114) |
| 11. consideration of overlapping damages (Para 120 , 121) |
| 12. final judgment and orders (Para 123) |
A) Introduction
[1] This is a personal injury claim arising from a road traffic collision between the plaintiff and the 1st defendant. The 2nd defendant was the owner of the vehicle driven by the 1st defendant. The plaintiff suffered multiple injuries due to the said collision. The plaintiff thereby claimed damages against both defendants before this court.
[2] This court had been relieved from appraising the distribution of liability because both parties have agreed that the defendants were 90% negligent and the plaintiff's contributory negligence was 10%. The remaining issue for adjudication by this court was only on the assessment of quantum.
[3] The plaintiff demanded the sum of RM337,000.00 for general damages, and RM501,142.00 for special damages. The defendants in retort submitted that the plaintiff should only be awarded with RM85,333.00 for general damages (with 10% deduction for overlapping injuries) and RM12,833.00 for special damages.
[4] I have striven to consider all evidence in context, had close regard to the consistency of witnesses' testimonies and the reliability of the documentary records produced before this court. I found that the plaintiff has proven his case on the balance of probability. I therefore allowed the plaintiff's claim for general damages, special damages, the costs for documents and interests.
[5] Dissatisfied, the plaintiff is now appealing to the High court against my decision on the decided quantum. Hence this judgment.
B) Background Of Facts
[6] The whole facts of this case may not contribute to the pith and substance of this judgment because both parties have agreed on the distribution of liability. However, for the completeness to this judgment, suffice for me to narrate the facts of this case in brief.
[7] On 17 May 2020, around 4.00 pm, the plaintiff was riding his motorcycle travelling from Taman Permatang Jaya towards Banting Baru. Upon reaching KM5 Jalan Banting-Jugra, the 1st defendant who was driving a multi-purpose vehicle from the opposite lane entered the Plaintiff's right of way, hitting the front part of the plaintiff's motorcycle. The plaintiff was thrown onto the road and suffered injuries. The plaintiff was brought to the emergency department at Banting Hospital to receive his immediate emergency treatment before he was transferred to Tengku Ampuan Rahimah Hospital in Klang. The plaintiff sustained multiple injuries as described in the medical report and also suffered material losses.
[8] There were only two witnesses called during the trial namely, the previous employer of the plaintiff (SP1) and the plaintiff himself. The testimonies of both SP1 and the plaintiff were mainly focused on plaintiff's employment and the plaintiff's salary. The defendants closed their case without calling any witnesses.
[9] Oral testimonies from the medical experts were not offered to this court since both counsels were in agreement with all of the medical reports subject to submission. There were 11 medical reports produced by both parties:
i) Medical report from Banting Hospital, prepared by Dr Al Azril B Arifin, dated 4 August 2020.
ii) Medical report (dental) from University of Malaya Medical Centre, prepared by Dr Dhanya Dars
