Wan Suleiman SCJ:

The respondent became a settler in one of the Felda land settlement schemes - the Felda Belara on 24 February 1974 and was allotted 8.47 acres of rubber, the trees being already tappable. The land is a bit hilly, a relevant factor in view of his subsequent disability.

He had a wife and 9 children, and before the accident it was undisputed that he alone did all the rubber tapping.

On 2 December 1978 whilst he was riding his bicycle he was knocked down by the first appellant who was driving a motor car in the opposite direction. As a result he suffered a trochanteric fracture to his left femur which resulted in a 1" shortening of his left leg. The learned trial Judge recorded his present disabilities as follows:

(a) 30% permanent disability:

(b) 1" shortening of left leg;

(c) Unfit for jobs that require continuous use of both lower limbs.

The learned trial Judge also found as follows:

After the accident his wife and one of the sons help him to tap the rubber trees. The plaintiff is now 43 years old. He met the accident on 2 December 1978 when he was about 39 years old.

Up to the date of accident (2 December 1978) plaintiff alone was tapping the rubber trees on the land allotted to him, right from the day he became a settler. His net income before the accident was:

(i) in 1977 - RM3,408.53

(ii) in 1978 - RM3,316.71.

His net income after the accident with his wife and son working are:

(i) 1979 - RM2,818

(ii) 1980 - RM4,556

(iii) 1981 - RM4,594 (skipping the cents).

For 1 year after the accident (i.e. from December 1978 to December 1979) he could not work at all. Now, he can only assist his wife and son.

Plaintiff has to give money to his son as a wage otherwise he would not work. He give 1/3 of the income to his son. And if his son does not want to work he has to engage someone to do the work. His earning will be 1/4 of joint earning with the wife after deducting 1/3 to his son.

The learned trial Judge had to decide only on the question of quantum, 100% liability having been conceded by the appellants. His award is as follows:-

(1) The defendants to pay the plaintiff:

Special damage of RM1,660 (as agreed) with 3% interest per annum from date of filing of writ to date of realisation of Judgment.

(2) Loss of earning per-trial amount to RM14,795 with 6% interest per annum from date of accident to date of realisation of Judgment.

(3) Loss of future earning capacity RM21,705.60

(4) Pain and suffering RM15,000.00

with 6% interest from date of accident to date of realisation of Judgment.

This appeal is thus against quantum only.

Though the learned Judge noted the loss of earnings (meaning pre-trial loss) was never pleaded, respondent apparently applied at the trial to include a claim under this heading. This application was alluded to in the grounds of judgment. There is no reference of such application having been made anywhere in the notes taken by the trial Judge, though it was noted that Counsel for the appellants had indicated to the Court that the statement of claim did not include claim for loss of future earnings, an omission which formed the basis of another ground of appeal.

In any event the trial Judge said in his judgment that the Court has the discretion and did allow his application for (per-trial) loss of earnings, citing the Federal Court decision in Lim Whong In v. Hock Cheong Newspaper Transport Co. Ltd. & Ors. [1966] as authority for the proposition that it is part of general damages. There the appellant/plaintiff had appealed against the quantum of general damages awarded to him as a result of an accident in which he sustained injury to his arm. He was awarded RM15,000 as general damages only. One of the grounds of appeal raised was that the learned trial Judge had given damages for injuries only and had failed to take account of any loss of future earnings when, in his judgment he said: "In my view RM15,000 should be ample damages for the injuries on the left arm." The Federal Court held t