Chang Min Tat FJ:

Liability for the accident having been admitted, the only issue at the trial in the High Court at Penang (Gunn Chit Tuan J) was the amount of the damages to be awarded.

The plaintiff, a professional lorry-driver, aged 40 years at the accident, suffered multiple lacerations which when described at length on paper appeared more gruesome than they actually were or could be. But he also sustained a linear fracture of the left temporal bone, as a result of which he was unconscious for five days. It resulted in physical disability and mental degeneration. He now has some degree of spasticity and lacks co-operation of his limbs. The consultant neuro-surgeon does not think he would be able to drive lorries any more or perform work requiring physical exertion. He cannot now squat or run though he can walk about and manage himself quite satisfactorily. He also complains of headaches and it is said his intellect is affected to the extent of his undergoing a personality change, with loss of memory and a possibility, though remote, of developing epilepsy.

Before his accident, he was a paid lorry driver. He alleged he also supplemented his wages by buying and selling fruits, presumably in bulk and with the use of the lorry he was driving. He has now lost his job and is not able to carry on with his private business as a fruiterer, and he has been unsuccessful to date in getting employment, either as a lorry driver or in any other occupation. In his statement of claim, he averred his income to be RM175 a month, but at the trial he applied to have this figure amended to between RM400 and RM500. Agreement was however reached at a compromise figure of RM225. This agreement has greatly facilitated the assessment of damages.

The accident occurred on 5 November 1972. The writ was taken out on July 1973 and the statement of claim delivered on 31 October 1973. The trial took place on 23 November 1978 some five years after and took one day. Judgment was given on the same day and the plaintiff was awarded RM16,636.80 for special damages and a global sum of RM45,000 for pain and suffering and loss of amenities and for loss of future earnings. Interest at 3% was awarded on the special damages and at 60n the whole of the general damages.

Part of the special damages claimed was agreed at RM436.50 for repairs to the plaintiffs motor-cycle and the travelling expenses incurred to seek medical treatment. For the second part of the special damages claimed, in the 11 months between the accident and the delivery of the statement of claim, a sum of RM2,475 was awarded being 11 months times RM225 pm. Similarly for the 61 months, between the delivery of the statement of claim and the trial a sum of RM13,725 was awarded on the same basis. The total came to RM16,636.80. Interest at 3 0x80ac8e4a was levied on this sum.

As for general damages, the learned Judge discussed the claims of Counsel for the respondent that the sum for pain and suffering and loss of amenities should be RM26,000 and the loss of future earnings on a multiplier of 12 from November 1978, when the respondent would be 45 years old, would amount to RM24,118.99.

The figure RM24,118.99 is a curious figure. It shows an accuracy of calculation not displayed in any actuarial tables known to me. It is not shown what other tables were used, if any or what was the basis for this figure. The tables customarily used in our Courts do not cater for units of fives. The loss is usually set in tens. The actuarial figure for a loss of RM220 a month for 12 years is RM23,390.40 while that for a loss of RM230 a month for 12 years is RM24,453.60. By taking the mean, the loss of RM225 a month for 12 years is therefore RM23,927.

The Judge however refused to consider separate heads of damages. He felt that "it would not be easy for the Court to arrive at an accurate sum of money which would compensate the plaintiff in this case for the pain and suffering he has undergone and will in all pr