1. Appeal from a running down action concerning liability and quantum of damages for loss of future earnings and severe traumatic brain injury. (Para 1 , 5 , 6 )
Back
Next 
2025 MarsdenLR 2169
HIGH COURT (SHAH ALAM)
CHOONG YEOW CHOY, JC
Roey Vibishanan al Nagalingam & Anor – Plaintiff
Versus
Ooi Kwan Yih – Defendant
CIVIL APPEAL NO BA-12B-39-04 OF 2024
Advocates:
Navaseelan a/l Suppiah (Athi & Seelan) for the appellants.
Ravinder Singh Sodhi a/l Manmohan Singh Sodhi (Gurmit Chambers) for the respondent.
Navaseelan a/l Suppiah (Athi & Seelan) for the appellants.
Ravinder Singh Sodhi a/l Manmohan Singh Sodhi (Gurmit Chambers) for the respondent.
The court affirmed that neutral evidence is decisive in determining liability in motor accidents and clarified the distinction between the constant burden of proof and the shifting onus of proof regarding claims for loss of future earnings.
Headnote:(A) Civil Law Act 1956 - Section 28A(2)(c) and (d)(i) - Damages for loss of future earnings - Assessment of damages - Requirement that it must be proved or admitted that the plaintiff was receiving earnings by own labour or other gainful activity before injury - Multiplier of 16 applicable for persons aged thirty years or below at the time of injury (Paras 27-28) - Burden and onus of proof - Essential distinction between burden of proof, which lies upon the person who has to prove a fact and never shifts, and onus of proof, which shifts as evidence is adduced (Para 33).
(B) Motor Vehicle Accident - Liability - Determination of liability where two versions of events exist - Necessity of taking into account neutral evidence, including sketch plans, photographs, and actual damage to vehicles, to decide the more probable version (Paras 23-24).
(C) Quantum of Damages - Severe traumatic brain injury - Assessment of adequacy of award - Award must be reasonable and fair, taking into account expert reports and comparable judicial precedents (Para 38).
Facts of the case:
An accident occurred when a lorry suddenly changed lanes and entered the path of a motorcar. The driver of the motorcar sustained a severe traumatic brain injury. The lower court found the driver of the lorry 100% liable and awarded damages for loss of future earnings based on the plaintiff's income as a sole proprietor and a sum for the brain injury. Both parties appealed: the defendants challenged the liability and the loss of future earnings award, while the plaintiff cross-appealed for an increase in the quantum for the brain injury.
Findings of Court:
The court affirmed the finding of 100% liability against the defendant, noting it was supported by the investigating officer's testimony and neutral evidence. The award for loss of future earnings was upheld as the plaintiff had established his earnings through tax returns. The award for severe traumatic brain injury was increased from RM40,000 to RM80,000, as the original sum was found to be unreasonably inadequate.
Issues: Whether the lower court erred in finding the defendant 100% liable; whether the award for loss of future earnings was based on sufficient proof of income; and whether the quantum awarded for severe traumatic brain injury was adequate.
Ratio Decidendi: In motor accident claims, neutral evidence such as sketch plans and photographs is decisive in resolving conflicting testimonies. Regarding loss of future earnings, once a plaintiff provides evidence to support a prima facie case, the onus shifts to the defendant to adduce rebutting evidence. Quantum for personal injury must be commensurate with the gravity of the injury and supported by expert evidence.
Result: Appeal by defendants dismissed; cross-appeal by plaintiff partially allowed.
Legal Category Hierarchy
Table of Contents
2. Dispute over liability for the accident, the validity of loss of future earnings for a student-proprietor, and the adequacy of damages for brain injury. (Para 5 , 6 , 10 , 11 , 12 , 15 , 16 , 17 , 18 )
3. Evaluation of neutral evidence for liability, application of the Civil Law Act 1956 for earnings, and assessment of expert reports for injury quantum. (Para 8 , 9 , 14 , 23 , 24 , 30 , 31 , 32 , 33 , 34 , 37 , 38 )
4. Neutral evidence determines the probable version of events in accidents; the burden of proof for earnings rests on the plaintiff to establish a prima facie case. (Para 24 , 33 )
5. Liability and loss of future earnings awards affirmed; damages for severe traumatic brain injury increased; costs awarded to the respondent. (Para 25 , 34 , 38 , 39 )
6. How does the court determine liability when parties provide conflicting versions of a road accident?
The court relies on neutral evidence, such as sketch plans, photographs, and actual vehicle damage, to determine which version of events is more probable. (Para 23 , 24 )
7. What is the legal requirement for awarding damages for loss of future earnings under the Civil Law Act 1956?
Damages are awarded if it is proved or admitted that the plaintiff was receiving earnings through their own labour or other gainful activity before the injury. (Para 28 )
8. What is the distinction between the burden of proof and the onus of proof in civil claims?
The burden of proof remains with the party required to prove a fact and never shifts, whereas the onus of proof shifts between parties as evidence is adduced. (Para 33 )
Choong Yeow Choy JC:
JUDGMENT Introduction
[1]This appeal arises from a running down action that has left both parties dissatisfied with the outcome at the Sessions Court. The Appellants/Defendants challenge the decision of the learned Sessions Court Judge, who found the First Appellant/Defendant 100% liable and awarded RM507,984.00 to the Respondent/Plaintiff for loss of future earnings. Meanwhile, the Respondent/Plaintiff has filed a cross-appeal, disputing the award of RM40,000.00 in general damages for severe traumatic brain injury, arguing that it fails to reflect the gravity of the injury sustained. This appeal, therefore, revolves around contested findings of liability and the adequacy of damages awarded.
The Overarching Issues
[2]The first issue for this Court’s consideration is whether the learned Sessions Court Judge erred in law or fact in finding the First Appellant 100% liable for the accident.
[3]The second issue is whether the Sessions Court correctly awarded RM507,984.00 to the Respondent/Plaintiff for loss of future earnings.
[4]The third and final issue concerns the quantum of damages awarded for the injury suffered by the Respondent/Plaintiff.
The Parties’ Respective Contentions on the Issue of Liability
[5]According to the Respondent/Plaintiff, on 22 May, 2017 at approximately 11.30pm, he was was driving a motorcar with registration number WPD 8908 on his way from Damansara to his home in Subang via the NKVE Highway. The Respondent/Plaintiff went on to assert that upon reaching the turnoff (at Exit 104) to the Subang Toll Plaza, he continued to travel in the left lane of the road and but due to the negligence and/or breach of duty on the part of the First Appellant/Defendant who was driving a lorry with registration number BPA 5113, which was travelling in the same direction as the Respondent/Plaintiff but was at the right lane, suddenly changed course and entered into the path of the Respondent/Plaintiff’s motorcar thereby causing the accident.
[6]In their Defence, the Appellants/Defendants denied that an accident had happened between the lorry BPA 5113 driven by the First Appellant/Defendant and the motorcar WPD 8908 driven by the Respondent/Plaintiff. The Appellants/Defendants claimed that the Plaintiff’s motorcar had collided into the “back left” of the First Appellant/Defendant’s lorry. In the alternative, the Appellants/Defendants’ case was that in the event that an accident had occurred, the accident was due to the sole negligence of the Respondent/Plaintiff and/or there was substantial contributory negligence on the part of the Respondent/Plaintiff.
The Findings of the Sessions Court on the Issue of Liability
[7]As noted, the learned Sessions Court Judge attributed 100% liability to the First Appellant/Defendant.
[8]The learned Sessions Court Judge based her findings primarily on the testimony and evidence presented by SP1, the Investigating Officer. The investigations by SP1 revealed that the accident was between the motorcar driven by the Respondent/Plaintiff and the lorry driven by the First Appellant/Defendant. Photos of the damage to the vehicles were also tendered and the Sessions Court took cognizance of the fact that a summons was issued to the First Appellant/Defendant.
[9]Based on the investigations by the Investigating Officer and the evidence before the court, the Sessions Court accepted the Respondent/Plaintiff’s version that the First Appellant/Defendant had changed lane in a sudden manner and caused the accident.
The Parties’ Respective Arguments on Quantum for Loss of Future Earnings
[10]It was the Appellants/Defendants’ submission that the Sessions Court had erred in awarding RM507,984.00 to the Respondent/Plaintiff for loss of future earnings.
[11]The Appellants/Defendants’ case on this issue is premised on the ground that the Respondent/Plaintiff was a student at the time of the accident.
[12]The Respondent/Plaintiff argued that as the sole proprietor of a restaurant – Michu Restaurant – his annua
