Richard Malanjum JCA:

Introduction

This is an appeal against the decision of the High Court affirming the decision of the Sessions Court in disallowing the claim for loss of future earnings by the appellant. That in fact is the only issue for determination in this appeal.

After having heard the oral arguments of learned counsel for the parties we directed them to submit further written submissions to address us on the specific point of law involved, that is, the ambit of s. 28A of the Civil Law Act 1956 (the Act) in relation to loss of future earnings.

On receipt of the respective additional written submissions we took time to consider the opposing contentions. This is therefore the judgment of the court.

Background Facts

But first the facts of the case upon which the claim arose.

On 3 January 1996 the appellant was a pillion rider of a motorcycle bearing registration number PCU 4265 along Jalan Pangkor towards Jalan Gelugor, Penang. On reaching the junction of Jalan Perak and Peel Avenue the said motorcycle was knocked down by a motor car bearing registration number PCF 8923 which was owned and driven by the respondent.

As a result of the collision the appellant suffered injuries, including fractured mid-shaft left tibia and fibula, lacerations on the left leg and left foot. The injuries resulted in the Appellant having her left leg shorter by 1/2 cm. There are also scars on the front and lower portions of her left leg coupled by permanent deformity. Her left ankle has also become stiff and she finds it difficult to fully squat.

Decision Of The Sessions Court

After a full trial the Sessions Court George Town Penang found the Respondent to be 100% liable for the collision. There was no appeal against that finding to the High Court.

In respect of the quantum awarded the Sessions Court allowed the following:

General Damages :

For pain and suffering:

for the fractured tibia and fibula: RM16,000;

for the scars: RM2,000; and

for the other lacerations: RM1,000.

Total sums: RM19,000.

For loss of earnings under the claim for special damages:

loss of actual earnings: RM31,500

(RM1,500 x 21 months);

partial loss of actual earnings: RM9,100

(RM700 x 13 months); and

loss of future earnings: disallowed.

Dissatisfied with the quantum awarded the appellant appealed to the High Court against the earnings multiplicand given as well as the rejection of the claim for loss of future earnings.

Decision Of The High Court

The learned High Court judge partially allowed the appeal in that he increased the earnings multiplicand from RM1,500 to the original figure claimed by the appellant of RM3,120 thereby making the sum awarded for loss of actual loss of earnings to RM65,520 (RM3,120 x 21 months) and the loss of partial earnings to RM30,160 (RM3,120 RM800 x 13 months). He affirmed the rejection of the claim for loss of future earnings.

This Appeal

The appellant, still dissatisfied with the decision of the learned High Court judge is appealing to this court specifically on the rejection of the claim for loss of future earnings. It is crucial to note that there is no cross-appeal by the respondent against the decision of the learned High Court judge in particular on the increase of the earnings multiplicand or any of the findings of the learned High Court judge.

In order to put the issue in better perspective it is pertinent to recap some of the findings by the Sessions Court in relation to quantum. They are as follows:

(i) that at the time of injury the appellant was working as a Guest Relation Officer with Treasure Corner Karaoke;

(ii) that the salary slips produced by PW6 only recorded the commission payable to the appellant hence they were found to be of recent creation by PW6 to assist the appellant;

(iii) that the reasonable income receivable by the appellant before the injury would be RM1,500 per month;

(iv) that the period of unemployment after the injury was given at 21 months;

(v) that from November 1997 the appellant did work as a sa