Syed Agil Barakbah SCJ:

We dismissed this appeal with costs and confirmed the judgment of the learned trial Judge of the High Court, Alor Setar in favour of the respondent/plaintiff. We now give our reasons for doing so.

In the Court below, the respondent sued the appellant for general and special damages due to injuries sustained by him in a motor accident which took place on 10 January 1980 at about 4.15 p.m. along the Jitra/Alor Setar main road when a piece of plywood 4 feet x 8 feet fell from the pick-up driven by the appellant and struck the respondent who was at the material time riding a motor cycle, as the two vehicles passed each other along the road from opposite directions. The respondent was injured and hospitalised for about four days in general hospital Alor Setar and discharged on his own request.

The general hospital medical report dated 12 May 1980 as accepted by the trial Judge showed that the respondent a 27-year-old male Malay, suffered from a 1½ " laceration over the right upper tibia/fibula region with clinically compound fracture of right upper tibia/fibula. A toilet and suture was done for laceration. The fractures in the lower leg was reduced and immobilised in plaster-of-paris cast. Subsequently on 11 November 1982 the respondent was further examined by the consultant orthopaedic surgeon, Penang Medical Centre who confirmed the injuries and concluded that the patient had sustained an open fracture of the tibia at the junction of its upper one-third and lower two-thirds which had united solidly but in a moderately severe angulation position. The fibula had been broken at two sites in the shaft; the upper fracture was not united but the lower fracture was solidly united. As a result, he had leg shortening of 1.5 cm with a slight limp when walking. He also had slight knee stiffness and a weaker lower limb. The 1.5 cm limb shortening was permanent. There was a danger of osteoarthritis arising in the knee in later years. The doctor was also of the opinion that if the patient had not discharged himself from the general hospital to seek indigenous treatment the shortening would probably be less in the region of 0.5 to 1 cm and the fracture would have ended up with less deformity.

Based on the medical opinion stated above and other relevant evidence, the trial Judge awarded the sum of RM20,000 to the respondent as general damages i.e, RM18,000 for pain and suffering and RM2,000 for loss of amenities. It was submitted that the sum awarded for general damages was unduly excessive and the trial Judge failed to consider adequately the trend of awards in similar cases. We did not agree. We noted that in the first place the trial Judge considered the injuries and the effect thereof suffered by the respondent including in particular the shortening of the leg as 1 cm instead of 1.5 cm. The award was not only for the shortening but for the other injuries as well. Although the trial Judge did not touch on relevant authorities in his straight-forward judgment, we were satisfied according to the trend of authorities cited to us by both learned Counsel, that the award of RM18,000 was fair and reasonable and in no way excessive.

The next ground was that the trial Judge erred in computing the respondent's earnings and applied different standards in his computation for loss of earnings. We did not agree. The trial Judge's conclusions were that prior to the accident the respondent was earning around RM536 per month as a padi planter cultivating 11½ relongs which were handed back to the owners soon after the accident. About one year after the accident, he and his wife managed to cultivate only 2½ relongs and their joint monthly income from that source was around RM118. They were still cultivating the 2½ relongs up to the date of the trial. Prior to the accident, the respondent supplemented his income by driving a tractor to plough padi fields and his income was about RM2,800 a year. These conclusions were based on evi