RK Nathan J:

Preliminary Issues

In this case I heard the plaintiff's appeal against liability. In the lower court the plaintiff's claim was dismissed with costs. On 31 October 2001 I allowed the plaintiff's appeal and apportioned liability as follows: Plaintiff 2/3 liable and the defendant 1/3 liable. This is the plaintiff's appeal against the award of damages of the Sessions Court.

At the outset of the hearing of the appeal Mr. Ramanathan for the respondent/ defendant intimated that although he was only served with the memorandum of appeal the day before, he was prepared to go on with the hearing of the appeal provided Mr. Brijnandan for the appellant agreed to the respondent's oral application to cross appeal on two issues.

1) that the plaintiff ought not to have been awarded loss of future earnings as he had not proved that he was in good health as is required to be proved pursuant to s. 28A(2)(c)(i) of the Civil Law Act 1956.

2) If the court was mindful to make the award then a deduction ought to be made pursuant to the Court of Appeal's decision in Takong Tabari v. Government of Sarawak & Others and Another Appeal[1998] 4 CLJ 589.

Mr. Brijnandan readily agreed and also informed the court that he was also ready to respond to the two issues raised by Mr.Ramanathan.

General Damages For Pain & Suffering

The Sessions Judge awarded a sum of RM66,000 for the head injuries which he classified as follows:

i) Cerebral contusion RM3,000

ii) Multiple contusions in the right temporal parietal and occipital region RM3,000

iii) Cystic encephalomalacia with gliosis, moderate atrophy at the left frontal and temporal lobes and diffuse brain atrophy resulting in slurred speech inability to walk normally, inability to run and could fall easily with a chance of developing post-trauma epilepsy - RM60,000.

Mr. Brijnandan complains that this award of RM66,000 is too low. On the date of the accident ie, 30 January 1996 the plaintiff was admitted to Hospital Seberang Prai. His Glasgow Coma Score (GCS) on admission was 4/15. In 1974 Teasdale and Jennett in Glasgow, developed a system for conscious level assessment. They discarded vague terms such as stupor, semicoma and deep coma, and instead described conscious level in terms of eye opening, verbal response, and motor response. The Glasgow Coma Score is now used widely and in many hospitals throughout the world. Recording is consistent irrespective of the status of the observer and can be carried out just as reliably by a nurse as by a neurosurgeon. A score may be applied to each category of the grading system and the total summed to give an overall value ranging from 3-14. For example if there is no eye opening, no vertical response and extending to pain a score of 4 is given. (See Neurology and Neurosurgery Illustrated, 3rd edn. by Churchill Livingstone). With this background it is necessary to see the first medical report from Hospital Seberang Jaya. His GCS had improved from 4 - 10/15. He was however immediately sent to General Hospital, Pulau Pinang. Whilst there his GCS improved to 14/15. He was then readmitted to Hospital Seberang Prai. From here he was sent to Hospital Bukit Mertajam for nursing care. Whilst here he collapsed and developed sudden onset of shortness of breath and his GCS came down to 3/15. His family immediately discharged him and had him admitted to Loh Guan Lye Specialist's Centre where the consultant neurosurgeon stated that when the patient was admitted to the Specialist's Centre he had been unconscious since the accident. Since the defendant had not referred the patient to a specialist of his choice and since this aspect of the factual finding of the neurosurgeon had not been challenged I find that the patient had indeed been unconscious for 11 days since he was admitted to the Specialist Centre on 11 February 1996.

The neurosurgeon's final assessment was that the plaintiff has now a change of character and behaviour in that he is now an entirely different per