Ian H.C. Chin J:

Introduction

This is an appeal against the decision of the learned Sessions Court Judge who had on 1 April 1996, (after a trial concerning only the quantum of damages because liability was admitted) awarded the respondent damages in the following terms:

RM30,000 for injuries, RM20,000 for scars and RM600 for legal fees totalling the sum of RM50,600 as special damages together with interest thereon at the rate of 4% per annum from 17 June 1994 until the date of judgment and, RM60,000 for pain and suffering as general damages together with interest thereon at the rate of 8% per annum from the date of judgment until full payment and costs to be taxed.

That award was made after the following submission of Mr. Sugumar Balakrishnan, learned Counsel for the respondent, viz.:

Measure of damages

11. The plaintiff is entitled to claim damages for the injuries sustained, including the scars which have remained since recovery, and for pain and suffering. In considering these heads of claim, this Court ought to take into account the following pertinent and uncontroverted facts:

(a) The plaintiff was only 8 years of age at the time of the injury;

(b) The plaintiff was admitted as an out-patient on 17 June 1994. On 18 June 1994 he was admitted as an in-patient until 21 June 1994 and readmitted on 23 June 1994 until 2 July 1994 during which time he had been treated for his injuries and undergone desloughing;

(c) Both medical witnesses have testified that it would take at least 2 weeks from his discharge on 2 July 1994 to fully recover;

(d) Both medical witnesses have testified to the pain suffered by the plaintiff,

(e) The scars that have remained since recovery and which the plaintiff shall have to live with. Here, the evidence shows that the scars caused considerable discomfort, itchiness, bleeding and difficulty in walking;

(f) The medical evidence and the medical reports confirmed the injuries particularised at paragraph 12 of the Statement of Claim;

(g) The medical evidence also shows the burns sustained by the plaintiff in the genital area which is a highly sensitive area. These burns were described as more than superficial and were deemed to be sufficiently serious as to require his admission as an in-patient for a length of time.

12. In R.K. Nathan's Quantum of Damages at pp. 231-232 the learned author has referred to 3 cases concerning damages awarded for burns of which the case of K. Selvaraja & Anor. v. Singapore Bus Service Ltd. [1979] 1 MLJ xxxviii may be of some assistance. In that case, the plaintiff was 12 years of age who suffered 1% burns in his hand and was awarded S$5,000 as general damages. However, in our case the plaintiff was 8 years of age and suffered 5% burns in his genital area. Further, the damages awarded in the Singapore case was decided in 1978 and inflation ought to be taken into account.

13. It is submitted that a sum of RM40,000 would be appropriate for the injuries suffered by the plaintiff.

14. The plaintiff also has permanent scars in his genital area. Please see R.K. Nathan's Quantum of Damages at pp. 235-237. It is submitted that a sum of RM25,000 would be appropriate in this regard especially taking into account possible plastic surgery in future.

15. In respect of pain and suffering it is instructive to look at the Federal Court decision in Yeo Kim Kuan v. Hamid[1968] 1 MLRA 621, [1968] 2 MLJ 188 where the Court cited with approval the description of pain and suffering in West v. Shephard [1964] AC 326.

16. It is submitted that pain and suffering comprises both physical and mental. Therefore, it also includes nervous shock fright at accident and fear of future incapacity under the mental element.

17. On the facts and evidence adduced at the trial it is submitted that a sum of RM75,000 would be a fair and appropriate award for pain and suffering.

18. Apart from the sum of RM40,000 claimed for injuries, RM25,000 claimed for t