Mohd Noor Abdullah J:

This is an appeal by the appellant/plaintiff against the decision of the Sessions Court judge and the appeal proceeded on two grounds only, namely loss of earning capacity and the failure to make an award for pain and suffering for a future operation which the plaintiff had to undergo.

At the trial in the Sessions Court, the plaintiff called his employer and a specialist to prove his case on the question of damages. The specialist gave evidence stating that the appellant had suffered a closed fracture of the right femur, compound fracture of the right tibia and fibula, and fracture of the 4th and 5th metacarpal (right hand). The right femur after fixation of plate and screws had healed satisfactorily, with loss of 2 cm of muscles in the right thigh. In respect of the compound fracture of the tibia and fibula, there was now a 1 cm shortening and stiffness of the right ankle joint. In respect of the fracture to the metacarpals, the specialist states that there was a widening of the base of the 5th metacarpal with some areas of faint sclerosis and slight shortening of the 5th metacarpal. Based on the above disabilities the specialist states that the plaintiff has disabilities of 20-30%.

The employer gave evidence that the plaintiff, prior to his accident on 19 July 98 was employed at his factory as an electrical maintenance worker, with a salary of over RM1,000. After the accident, he did not work for ten months. After that he returned to work again at the same factory.

The plaintiff at the time of the accident was 26 years old, working as an electrical maintenance labourer. His job would require using a ladder and climbing up in high places.

The learned Sessions Court judge did not make an award for loss of earning capacity. His reasoning in the grounds of decision was that it was only the doctor who testified on the loss of earning capacity, whereas the plaintiff did not say so.

Counsel for the appellant submitted that the evidence of this nature, is always adduced by an expert ie, the specialist. The plaintiff is not an expert, and whether the court can ever accept the evidence of the plaintiff, that his disability is twenty to thirty percent. The learned trial judge should have given credence to the evidence of the expert, especially so when it remained unchallenged and no expert was called by the defence to refute this evidence. Even an employer or a co-worker will not be able to estimate what, is the percentage of loss of earning capacity except to give evidence as to his standard of performance before and after the injury.

In the Supreme Court case of Yang Yap Fong & Anor v. Leong Pek Hoon & Anor[1987] 1 CLJ 377; [1987] CLJ (Rep) 419; [1987] 2 MLJ 201 at 202G, Syed Agil Barakbah SCJ with the concurrence of the other Supreme Court judges, were of the view that the opinion is relevant in considering the principle applicable to future loss of earning capacity as decided in a number of cases. An Award of RM12,000 was made.

In the case of Sam Wun Hoong v. Kader Ibramshah ; [1981] 1 MLJ 295, Mohd Azam J (as he then was) delivering the judgment of the then Federal Court said at p. 297.

As regards loss of future earnings and future loss of earning capacity, although such loss can be implied in appropriate cases, the award should be a nominal one unless the plaintiff can prove such a future loss is in fact sufficiently severe to warrant a substantial award.

In Lee Chong Keong v. Cheang Kok Weng & Anor ; [1996] 4 MLJ 133, Chin Fook Yen JC (as he then was) held that in assessing damages, the future loss of earnings and loss of earning capacity can be implied in law, and is included in cases where the injuries suffered were such as to lead to continuing or permanent disability ... Being a nominal worker, the plaintiff had undoubtedly suffered a set back for life, especially with some wasting of the right forearm muscles and some shortening of the leg concerned.

In Chong Chee Khong & Anor v. Ng Yeow Hin [