The Court affirmed that calculating damages under the Civil Law Act must adhere strictly to statutory multipliers without overlapping periods and upheld the judgment on negligence, maintaining the integrity of awarded damages.

David Wong J:

INTRODUCTION

[1]Before me is an appeal and cross appeal against the decision of the learned sessions court judge in respect of a claim for personal injuries and damages suffered as a result of a road accident.

[2]The brief facts of the case are these. On 9 September 1999 the second respondent (who was the second plaintiff in the court below) was a passenger in a van driven by the first respondent heading in the direction of Kuching via Tabuan Jaya. The van collided with a Toyota Hilux driven by the first appellant (who was the first defendant in the court below) coming from the opposite direction. The collision occurred when the first appellant encroached onto the van's path of travel. As a result of the accident the second respondent, who was then 35 years of age and operating a canteen earning RM65 per day, suffered personal injuries and was hospitalised immediately after the accident. The injuries sustained by the second respondent were as follows:

(a)Severe crush injury to left ankle and left foot.

(b)Compound grade III B supracondylar fracture left femur.

(c)Compound grade I fracture proximal shaft left femur.

(d)Closed fracture superior and inferior pubic rami.

(e)Fracture left patella.

(f)Laceration wound right inguinal region, 1 cm.

(g)Stiff left knee with range of movement up to 10–40 degrees.

[3]After a full trial, the learned sessions court judge found that the accident was solely caused by the negligence of the first appellant and accordingly entered judgment against the appellants.

[4]The appeal by the first appellant concerned only the quantum of damages awarded for the following:

(1)Cost of prosthesis: RM108,730;

(2)Pre-trial loss of income: RM115,115; and

(3)Partial loss of future earnings: RM114,720.

[5]As for the cross appeal by the second respondent, it concerned two items:

(1)The sum of RM99,000 awarded for pain and suffering; and

(2)The disallowance of second respondent's claim for costs of a helper.

APPEAL

[6]In respect of the cost of prosthesis of RM108,730, Ms Derbe Tang (Ms Tang) submitted that the learned sessions court judge had erred in not reducing the amount of RM108,730 by ¼ deduction for contingencies, vicissitudes of life and/or taking into account the accelerated payment. She relied on the case of Cheng Bee Teik & Ors v Peter Selvaraj & Anor [2005] 4 MLJ 301Bujang bin Mat & Anor v Lai Tzen Hai & Anor

(1)The foot needs to be changed every two years at the cost of RM880 per change.

(2)Socket needs to be changed at least once at the cost of RM800.

(3)Netting needs to be changed every six months at the cost of RM25 per change.

(4)The life span of Modular III is only six years.

[7]I cannot fault the learned sessions court judge's decision in not making the deduction as she had exercised her discretion judiciously. At this juncture, let me express my disappointment that the insurance company had not paid a single cent to the second respondent. I am fully aware that the judgment was only finalised on 19 October 2007 and there was an appeal. That in my view is not an excuse as the decision was delivered on the 1 December 2006 and the insurance company should have taken action to pay the second respondent whatever amount that they did not dispute, for example, the cost of prosthesis of RM108,730. The only dispute Ms Tang is making here is the non deduction of the ¼ for contingencies, vicissitudes of life and/or taking into account the accelerated payment. The insurance company could have made payment for the sum of RM81,547.50 which is an amount after a ¼ deduction. Insurance companies m