Abdul Hamid Omar CJ (Malaya):

[1] This was an appeal against the decision of Anuar J in the High Court at Ipoh on 22 November 1983 in respect of the award for special damages arising from a road accident on 24 October 1979 in which the respondent sustained injuries.

[2] The respondent aged 23 years at the time of the accident, 27 years at the date of the trial, was a goldsmith. He gave evidence that he started to work at the age of 14 with his goldsmith father who, at all material times, was the registered proprietor of the business at a shop along Main Road, Tapah. As his father was old he did most of the work and income went to him. His father continued to assist him. His monthly income prior to the accident was RM1,500 per month and out of this he paid the family expenses. He estimated that the value of his services to the business was about RM1,200 per month.

[3] At this stage of the proceedings, Counsel for the respondent applied to amend the prayer in the Statement of Claim in respect of special damages for loss of income to read at RM1,200 instead of RM600. The learned Judge allowed the application for the amendment although Counsel for the appellant objected to it.

[4] The appellant was dissatisfied with the award on grounds that the learned Judge had erred in law and in fact in assessing the loss of income at RM1,000 per month and on that basis awarded RM30,000 for 30 months during which period the respondent was incapable of doing any work; RM4,900 for 7 months during which time the respondent had resumed work but only earned a reduced income of RM300 per month and RM42,270 for loss in earning capacity for a period of 25 years at RM250 per month.

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In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled. (See Flint v. Lovell [1935] 1 KB 354).

[6] In Greenfield v. London and North Eastern Railway Company [1945] KB 89, MacKinnon LJ had this to say:

The principle on which the Court of Appeal reviews the assessment of damages, whether too high or too low, is not because the Court of Appeal might have given rather more or rather less, but only (1) if the Judge has omitted some relevant consideration or admitted some irrelevant consideration, or (2) if the amount is so excessive, or insufficient, as to be plainly unreasonable.

[7] Lord Evershed MR in Wilson v. Pillay [1957] 3 All ER 525 @ 526 emphasised that:

... interference by this Court with an award of damages by the trial Judge must be a rare thing, and may I say that it should be perhaps even rarer in relatively small cases tried in the County Court. No one would suggest that, because this Court thought that the damages, small in any case, were rather on the low side, this Court could consider for a moment slightly raising the figure or adopting the converse course in a different kind of case. In other words, the onus on an appellant seeking to interfere with an award of damages, particularly within this sort of scale, is a heavy one.

[8] We would also refer to Elliot v. Preston [1971] 2 Lloyds Rep 328 where Salmon LJ had this to say:

Before we can interfere, there has to be (in the phrase which is hallowed, but has now I think a rather archaic ring) a wholly erro