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1992 MarsdenLR 894
HIGH COURT (JOHOR BAHRU)
JAMES FOONG, J
CHONG KAM SIONG – Plaintiff
Versus
HERMAN BIN BAHARUDDIN – Defendant
CIVIL SUIT NO 22–118 OF 1989
N Jegatheeson (John Ang & Jega) for the plaintiff.
Anantha Kumar (Varughese, Kumar, Netto & Partners) for the defendant.
Claimants retain the right to choose their medical treatment provider without penalty in damage assessments, regardless of treatment adequacy in government hospitals.
Headnote:(A) Road Traffic Accident - Liability for injuries sustained - The plaintiff involved in an accident due to the defendant's motor vehicle crossing into his path, resulting in significant injuries. (Paras 1-3, 10-12)
(B) Quantum of Damages - Court assessed general damages for pain and suffering amounting to $92,000 and special damages $59,608. Court recognized the plaintiff's right to choose medical treatment, justifying expenses incurred in Singapore. (Paras 14-22)
(C) Legal Standard - A claimant's right to recovery for medical expenses is not contingent on the adequacy of treatment provided by government hospitals. (Paras 25-31)
Facts of the case:
The plaintiff sustained multiple injuries in a motor vehicle accident on 25th December 1988. The accident occurred when the defendant, while overtaking, collided with the plaintiff's motorcycle. The plaintiff presented evidence including sketches and medical documentation.
Findings of Court:
The court found the defendant solely liable for the accident and awarded general damages of $119,030 and special damages of $59,608.
Issues: The court addressed whether the plaintiff was entitled to recover medical expenses for treatment received at a private hospital in Singapore and the reasonableness of these expenses.
Ratio Decidendi: The court held that a claimant has the right to choose where to receive medical treatment and that such choice should not be penalized in assessing damages, irrespective of governmental constraints.
Result: Plaintiff's claims for damages and medical expenses were entirely allowed.
| Table of Content |
|---|
| 1. initial accident details and plaintiff's injuries (Para 1 , 2) |
| 2. assessment of plaintiff's injuries and damages (Para 3 , 4) |
GROUNDS OF JUDGMENT
The plaintiff in this case suffered injuries as a result of a road accident that happened on the 25th day of December 1988. On the said day the plaintiff was riding his motor cycle number JAV6366 along Jalan Johor Bahru/Kota Tinggi from Johor Bahru in the direction of Kota Tinggi. At or near the 18 m.s. of the said road, an accident occurred between his motor cycle and a motor car number BBF5780 driven by the defendant.
At the trial of this case, the plaintiff testified that motor car BBF5780 while overtaking him swerved into his path and collided into him. A sketch plandrawn up by the traffic police personnel was also adduced by the plaintiff's counsel.
The defendant was not present at the hearing and did not give evidence but his counsel Mr. Kumar represented him.
After careful consideration of the evidence of the plaintiff including documentary evidence such as the sketch plan and relevant photographs, I find that the defendant is solely to be blamed for the said accident.
As for the quantum of damages, only 2 matters need to be decided by this Court as the rest were agreed upon by both parties. The 2 matters are as follows;
1.pain and suffering (general damages)
2.medical expenses incurred by the plaintiff in a hospital in Singapore (special damages)
I shall first deal with the quantum regarding pain and suffering (general damages).
The injuries of the plaintiff can be classified under 4 headings:
(1)Branchial plesus
The plaintiff suffered a lesion affecting C5 and C6 nerve root. There is considerable wasting of muscles of the deltoid, the biceps and the triceps of the left upper limp. Due to this wasting, the plaintiff's shoulder joint contour is distorted. There is also significant wasting of muscles of the left forearm. As the result of the aforesaid scars were left with diminished sensation to pin prick over C5 and C6 dermatones.
Mr. Jegatheeson counsel for the plaintiff submitted to me that the plaintiff should be entitled to a sum of $30,000.00 for pain and suffering under this catagory. Mr. Kumar on the other hand felt that this catagory of damages should be tied up to the second catagory of injuries which I shall shortly state. For the combination of this and the second catagory of the injuries Mr. KUmar is of the opinion that the plaintiff is only entitled to $55,000.00.
(2)Fracture of left radius and ulna, comminated fracture of the 4th and 5th metacarpal, fracture of the proximal and middle phalanges of the 4th and 5th digits.
Most of these fractures were healed but resulted in certain amount of restriction in mobility.
Mr. Jegatheeson submitted a sum of $25,000.00 for pain and suffering under this catagory.
I am of the opinion that injuries in catagory (1) and (2) are very much related as it involves the right arm and hand of the plaintiff. For this I award the following for pain and suffering:
| (a) | brachial plexus | - | $25,000.00 |
| (b) | fracture of the ulna and radius | - | $15,000.00 |
| (c) | fracture of metacarpal and phalanges | - | $10,000.00 |
making it a total of $50,000.00 under the aforesaid two catagories.
(3)Hip injury
The plaintiff suffered from a fracture of the left acetabular with central dislocation of the hip joint. The result is that the plaintiff walks with a Trendelenburg gait with limitation of hip movement.
Mr. Jegatheeson submitted a sum of $40,000.00 while Mr. Kumar argued that the plaintiff should only be entitled $30,000/-.
After considering the awards by the courts on this type of injuries, I find that the plaintiff is entitled to $30,000.00 for this catagory of pain and suffering.
(4)Fracture of right femur
Both counsel agreed to an award of $12,000.00 for this catagory of injury.
From the aforesaid, I therefore award a total sum of $92,000.00 for pain and suffering of the plaintiff couple with the agreed sum of $27,030.00 for loss of future earnings, the plaintiff shall be entitl
