Ong Hock Thye FJ:

This is an appeal on quantum of damages. The respondent, having been injured in a road accident, succeeded in obtaining an award of damages amounting to $26,916 in the High Court at Ipoh. The appellant's contention is that this award is excessive and based on erroneous principles.

The above sum is made up of (a) three items of out-of-pocket expenses totalling $916; (b) loss of earnings for 42 months, from date of injury to trial of the action $8,400; (c) loss of prospective earnings $12,600; (d) damages for pain and suffering $5,000. No complaint is made against the items of special damage amounting to $916.

The respondent claimed that, until his temporary disablement, he was a quarry contractor, earning $300 per month. On the evidence the learned Judge placed him in the category of a foreman who merely supervised the breaking of stones and their despatch to customers' work sites. He assessed the respondent's true monthly income at $200 which I think was realistic. The volume of his business was so inconsiderable that it was not worth while for him to keep any accounts or wages book. He was also dependent partially on his wife's small earnings as an odd job labourer bringing home about $80 per month. After his accident it was alleged that their 14 year-old son and 12 year-old daughter were compelled to leave school and seek employment in order to make up for the loss of the family bread-winner's income.

The respondent was 59 years-old when the trial took place; hence he was approximately 55 when he suffered the injury on 5 September 1962. He was on his back for 168 days in hospital while a compound fracture of the upper third of the left femur was mending. On the evidence his incapacity lasted 11 months altogether. Examination by the State Surgeon, Perak, in April 1964 revealed a slight limp by reason of a 'bd-inch shortening of the left leg and limitation of flexion of the knee to about a right-angle. This was the sum total of the permanent effects of his injuries.

His occupational activities lay principally in supervising labourers breaking stones - not in performing such arduous toil himself. The slight limp, due to the 'bdinch shortening of one leg could hardly have been serious, from any point of view. But being unable to sit on his haunches, in the trial Judge's view, was "the more serious, as far as loss of amenity is concerned", since "he would not be able to ride a bicycle or use the Asian type of lavatory"; moreover, his was the type of work that could not be performed "from an arm-chair and would involve a certain measure of physical strain." With respect, it seems to me that, even for a person without any disability, just standing up for long periods "involves a certain amount of physical strain." So also does the work of the police constable on beat duty or any kind of physical labour. The real question was whether he was in any way less capable of going about his normal occupation. If so, then and then only, would arise the assessment of the pecuniary loss resulting therefrom. Loss of earning capacity is a horse of a different colour from loss of amenity.

I shall now deal at the same time with two heads of loss of earnings, past and future, for which the respective awards were $8,400 and $12,600, a total of $21,000. I am indebted to Mr. Talalla for calling my attention to Ilkiw v. Samuels [1963] 1 WLR 991, applied. There the plaintiff claimed special damage of STG77 based on loss of wages for four months after the accident, but at the trial, which did not take place till after eight years, a continuing loss of wages of STG200 a year and 446 days' absence from work for hospital treatment was proved. Phillmore J awarded total damages of STG4,077. An excerpt from the judgment, on appeal, of Willmer LJ, at p. 1001, which I quote below, should render any explanation by me otiose:-

If I thought that, in coming to that result, the Judge was doing no more than taking into consideration th