RK Nathan JC:

Background Facts

[1] On 1 June 1990 the 1st plaintiff was riding motorcycle No BCF 9524 with the 2nd plaintiff as pillion along Jalan Seremban/Kuala Lumpur when they were collided into by motor car NL 8628 driven by the defendant.

[2] The writ was filed on 28 November 1990 and the defence on 27 February 1991. Since then this case, like the fate of many others of its kind lay dormant with neither party making any moves to have the case heard.

Case Management

[3] Having set this case down for case management, parties appeared before me on 29 January 1997 when I fixed this case for hearing to 16 and 17 June 1997. On the day of the hearing, the defendant conceded total liability as against both plaintiffs. I was to decide on both general damages and loss of earnings.

Evidence

[4] The 1st plaintiff gave evidence on his behalf and stated that prior to the accident he was employed as a shoe-maker. He earned RM1,200 per month and this depended on the number of shoes he could manufacture each day. However, he was able to manufacture between 20 to 30 pairs of shoes per day and was paid RM2.50 per pair of shoes completed. He did not contribute to the Employees Provident Fund (EPF) as he was engaged on a contract basis. After the accident he did not receive any payment for a year. Although after the first year he went back to his previous employer, the latter refused to engage him due to his injuries. He then obtained a light job wherein he was paid RM300 per month for two years. From there he obtained his present employment where, notwithstanding the fact that he was doing the same light job of obtaining orders he is being paid RM700 per month. He therefore told the Court that he was claiming RM600 (should have been RM500) as loss of earnings because he was unable to get the earlier salary of RM1,200. Referring to the report on him from the orthopaedic specialist (Dr Teo's report) he said he was admitted to the University Hospital for six weeks.

[5] Under cross-examination he stated he was 20 years old at the time of the accident. He stopped schooling when he was in Form 5 and immediately commenced his apprenticeship as a shoe-maker in a different factory. Prior to the accident he was employed by Leong Yin Ho Shoe Maker for about six months and he worked six days a week and he was paid monthly. However, he had no documentary evidence to prove his earnings as he did not sign any vouchers when receiving the money. He did not pay income tax. After the accident he was working in 'exclusive enterprise' wherein he was paid RM300 per month. The light work he was engaged in was to open up bills and orders. Subsequently he was engaged by 'Ware Enterprise' wherein he was paid RM700 per month. He worked initially as an apprentice for two years and received RM10 per day. He denied the defence's suggestion that he was only earning RM700 - RM800 per month and not RM1,200 at the time of the accident.

[6] Referring to the medical bills he paid to the Tawakal Hospital which is a private hospital, he said that he had to go to the Tawakal Hospital because the University Hospital did not attend to an injury to his right leg. When shown Dr Teo's report wherein the said Dr Teo had recorded that the plaintiff had stated that since the recovery from his injuries he had returned to his former job he explained that what he had actually meant was that he had returned to the job of a shoe-maker, and not that he had returned to the former employer under whom he had received RM1,200 per month.

[7] The 2nd defendant confirmed that he was examined by a neurosurgeon (neuro report) and by an orthopaedic surgeon (ortho report) and that his present condition is as stated in the said reports. His father had died when he was 13 years old. Since his mother's income was insufficient for the family, he worked part time after school. He went to school from 7.00 am to 12.30 pm and worked from 2.00 pm to 8.00 pm. He was in Form 5 at the time of the accident. He too sai