Nik Hashim JCA:

Background

[1] At about 5.20pm on 16 August 2002, the appellant, a 40 year old senior journalist with Bernama, was hit on his head by a 13.4kg safety wheel which fell off of a monorail train on a test run whilst he was crossing the road at Jalan Sultan Ismail, Kuala Lumpur. He suffered serious head injuries as a result.

[2] As a result of those injuries he suffered, the appellant filed a civil suit against the respondents for their negligence in operating the monorail train. In the statement of claim, the appellant claimed general damages in the sum of RM5,000,000 and special damages. In their defence, the respondents disputed the claim and alleged that the injuries suffered by the appellant were caused wholly or partly due to his own negligence.

[3] Pending the trial of his action, the appellant filed an application for an interim payment of RM250,000 in respect of damages pursuant to O 22A of the Rules of High 1980 (the RHC).

[4] On 20 September 2004, the learned High Court judge dismissed the appellant's application essentially on two grounds:-

(i) the appellant had not proven that his condition had deteriorated in the two years since the accident; and

(ii) the learned judge had found that should the respondents succeed in their defence of 'novus actus interveniens' (that the safety wheel came off as a result of deliberate intervention by person or persons unknown or as yet unidentified), the respondents would be absolved from liability altogether or at the very least their share of responsibility would be reduced accordingly and thus, the appellant would not be able to obtain substantial damages if the matter proceeded to trial.

[5] Dissatisfied by the said decision, the appellant now appealed to this Court.

[6] On 23 November 2004, we allowed the appeal with costs here and below and made an order that an interim payment of RM50,000 be awarded in favour of the appellant. We also made an order that the deposit be refunded to the appellant.

Order 22A Of The RHC

[7]Order 22A was introduced in the RHC by the Rules of the High Court (Amendment) (No 2) 1993 vide PU(A) 192/93 with effect from 1 August 1993. It followed the view expressed by Lord Scarman in Jamil Harun v. Yang Kamsiah, [1984] 1 MLJ 217 that Malaysia had no provision similar to O 29 rr 9, 11 & 12 of the English RSC. In that case one of the plaintiffs was a seven year old infant from a lower income background who suffered severe brain injuries as a result of an accident (liability was admitted by the defendant), required medical and lifelong nursing care and supervision. The matter went on appeal to the Privy Council on the assessment of damages. His Lordship, in delivering the judgment of the Board at p 221 said:-

Their Lordships cannot leave this case without commenting on two unsatisfactory features ... as their Lordships understand the position, no power exists in a case where the liability is admitted for an interim payment to be ordered pending a final decision on quantum of damages ... it would seem legislation may be needed to enable an interim award to be made. (see Malaysian High Court Practice - 2001 Desk Edn 1 - pp 770-790).

[8]Order 22A r 1 provides as follows:-

'interim payment', in relation to a defendant, means a payment on account of any damages, debt or other sum (excluding costs) which he may be held liable to pay to or for the benefit of the plaintiff ...

[10] In the present appeal for the appellant to succeed, the appellant has to satisfy the Court the requirements laid down under O 22A r 3(1) of the RHC which states:-

(a) that the defendants (respondents) have admitted liability for the appellant's damages; or

(b) that the appellant has obtained judgment against the respondents for damages to be assessed; or

(c) that, if the action proceeded to trial, the appellant would obtain judgment for su