Raus Sharif PCA (delivering judgment of the court):

INTRODUCTION

[1]This is an appeal by the defendant against the decision of the High Court at Penang dated 28 July 2010 in dismissing the defendant’s appeal and upholding the decision of the learned Sessions Court Judge at Georgetown in allowing both the plaintiffs’ claim for medical expenses for the treatment of injuries suffered in a road accident.

[2]We heard the appeal on 24 November 2011 and 17 February 2012. After hearing the parties, we adjourned the matter for our consideration and decision. We now give our decision and the reasons for the same.

[3]The facts are not in dispute. The plaintiffs suffered injuries arising out of a road accident. They both sought private medical treatment at Gleneagles Medical Centre. The costs of the medical expenses incurred in respect of the first plaintiff was RM60,768.74 and the second plaintiff was RM17,806.55. The medical expenses in respect of the first plaintiff was paid by Prudential Assurance Malaysia Bhd (‘Prudential Assurance’) to Gleneagles Medical Centre while the second plaintiff paid for his own medical expenses.

[4]The only issue argued in this appeal is whether the defendant is liable to reimburse the first plaintiff’s medical expenses incurred at the Gleneagles Medical Centre where the same has been paid by the Prudential Assurance.

[5]Learned counsel for the defendant submitted that the defendant should not be liable to compensate the first plaintiff for the medical expenses incurred by him. It was argued that the medical expenses incurred by the first plaintiff was out of pocket expenses and since it was not paid by the first plaintiff, he was not kept out of pocket. Thus, the defendant should not be made to pay for medical expenses that was already paid by Prudential Insurance. In support, he relied on the High Court case of Khairul Sham bin Ahmad & Anor v Yesudass a/l Michaelsamy

I think special damages means ‘out of pocket expenses’ which consists of money incurred or paid by the plaintiff, which amounts to a ‘loss’ to the plaintiff. During the trial at the sessions court, the plaintiff testified that he incurred a medical bill of RM40,000 and the said bill was paid by ACE General Insurance Bhd his personal insurers. Therefore it is my opinion that the plaintiff’s medical bill does not amount to out-of-pocket expenses. It was not paid by the plaintiff and therefore was not a loss to the plaintiff. Hence, the learned sessions court judge has erred in law in awarding the plaintiff for the sum of RM30,000. The learned session’s court judge’s action has enriched the plaintiff by RM30,000 out of this accident. In the case of Parry v Cleaver referred above, Lord Reid held that ‘British the Transport Commission v Gourley (1) did two things. With regard to the first question it made clear, if it had not been clear before, that it is a universal rule that the plaintiff cannot recover more than he has lost. And, more important it established the principle that in this chapter of the law we must have regard to realities rather than technicalities’. The plaintiff admitted during examination-in-chief that his insurer paid for his medical bill. He did not pay the bill himself. He incurred no expenses with respect to the medical bill. Therefore, he has no right to be compensated for the said bill … Hence it is clear that the plaintiff cannot claim for the medical expenses paid by the insurance company because the rights to recover the medical expenses lies in the hand of his insurer. The medical expenses of RM30,000 awarded by the learned sessions court judge has enriched the plaintiff. The enrichment has violated the philosophy behind the principle of compensatory damages upheld by this country. Therefore such an award shall not be allowed.

[6]Learned counsel for the first plaintiff argued otherwise. He submitted that the High Court was right in upholding the decision of the sessions court judge in allowing the first plaintiff’s claim f