Abdul Malik Ishak JCA:

The Parties

[1] I shall refer the parties to what they were referred to before the Sessions Court at Ipoh, Perak. Thus, Sukatno will be referred to as the plaintiff. While Lee Seng Kee will be referred to as the defendant and, finally, Ong Thean Soo will be referred to as the third party.

At The Sessions Court

[2] In the statement of claim, the plaintiff alleged that the plaintiff had suffered personal injuries and loss arising out of a road accident which occurred on 30 June 1996 at about 3.10pm along Jalan Fair Park, Ipoh, Perak involving a motor van WR 5906 allegedly driven negligently by the defendant and while so driven collided into the plaintiff who was walking on the same side of the road.

[3] The Sessions Court on 28 November 2001 found the defendant 50% liable to the plaintiff in the tort of negligence and also found the plaintiff 50% liable for contributory negligence. However, the Sessions Court dismissed the defendant's claim against the third party with costs.

[4] On the basis of 100% liability, the Sessions Court awarded the plaintiff the sum of RM150,000 as general damages bearing in mind that the plaintiff was paralysed from the waist downwards as a result of the road accident. That would be for pain and suffering and the award carried with it interest at the rate of 8% per annum from the date of service of the summons on 21 October 1996 till the date of judgment on 28 November 2001.

[5] For special damages, the Sessions Court awarded RM14,000 for transport expenses with an interest of 4% per annum from the date of the accident on 30 June 1996 until the date of judgment on 28 November 2001.

[6] Still under the category of special damages, the Sessions Court awarded the following awards:

(i) a sum of RM580 as cost of relevant documents with interest at 4% per annum from the date of the accident on 30 June 1996 until the date of judgment on 28 November 2001;

(ii) a sum of RM310 being cost of medical treatment with 4% interest per annum from the date of the accident on 30 June 1996 until the date of judgment on 28 November 2001;

(iii) a sum of RM21,600 towards the cost of pampers with interest at 4% per annum from the date of the accident on 30 June 1996 until the date of judgment on 28 November 2001;

(iv) a sum of RM153,600 for loss of future earnings calculated at RM800 per month for 16 years;

(v) a sum of RM60,000 for nursing care; and

(vi) costs of the action at RM18,036.

At The High Court

[7] The defendant appealed to the High Court against the whole of the decision of the Sessions Court.

[8] In regard to the loss of future earnings in the sum of RM153,600 that was awarded to the plaintiff by the Sessions Court, the defendant appealed to set it aside on the grounds that it was gained through illegal earnings confounded by the fact that the plaintiff was an illegal immigrant.

[9] Before the High Court, the appeal by the defendant was focussed on liability and the loss of future earnings.

[10] After hearing arguments, the High Court allowed the defendant's appeal against liability and set aside the finding of 50% liability against the defendant and the 50% contributory negligence against the plaintiff. The High Court also held that the plaintiff's claim against the defendant should be dismissed with costs. In regard to the award for loss of future earnings at RM153,600, the High Court set it aside. However, the dismissal of the defendant's claim against the third party was affirmed by the High Court with no costs awarded to the third party.

[11] In short, the High Court allowed the defendant's appeal with costs.

The Appeal

[12] Aggrieved by the decision of the High Court, the plaintiff filed an appeal against the whole decision of the High Court to this Court.

Analysis

(a) Liability

[13] In his police report at p. 26 of the additional appeal record ("AAR"), the plaintiff said that on 30 June 1996 at about 2.50pm while he was walking along Jalan Fair Park near to the Magnum shop on the left side of the ro