RK Nathan J:

This is the plaintiff's appeal only in respect of quantum, the defendant having been found totally liable for the accident. Mr. Brijnandan for the plaintiff argued:

(a) that the award for pain and suffering amounting to RM28,000 was too low;

(b) that there should have been an award for loss of earning capacity.

Findings Of The Court

(a) Pain And Suffering

The first medical report stated that as of the date of accident that is 7 April 1996, the plaintiff was in hospital for 18 days. The injuries were as follows:

1. Closed supracondylar fracture of left femur with comminution;

2. Closed fracture mid-shaft of left tibia;

3. Old fracture of upper 1/3, left tibia.

Management:

1. Plating of left femur with bone grafting done under spinal anesthesia after 16 days of admission to hospital;

2. Fracture of left tibia was managed conservatively.

The Specialist Report

The orthopedic specialist examined the plaintiff on 18 July 1997.

The findings of the specialist were:

1. Although walked with a limping gait, able to walk unaided;

2. Left leg was 4cm shorter than the right;

3. Thigh girths when measured 10cm from the upper poles of the knee caps showed the right to be 43cm and the left 40 1/2cm indicating wasting of the muscles of the left leg.

4. Scars

(a) 23cm long scar over the lateral aspect of the left lower thigh;

(b) 7cm bone graft donor scar over the anterior aspect of the right iliac crest.

5. Swelling around the knee joint with bow legged deformity of 10° of the knee joint with a range of movements of flexion being 0°-80° (Normal: 0°-150°) .

6. Whilst he was able to stand on one leg he was unable to squat.

7. The fracture of the femur has united with angulation and the shortening. There is a plate and screws across the fracture site.

8. The cost of removal of the plate and screws with hospitalisation will be RM3,000.

9. Inevitable that he would gradually develop osteoarthritis of the knee joint.

Subsequent to his earlier report, the same specialist gave another report also about a year later wherein he confirmed that about 1.5-2cm of the shortening was due to the old fracture. Therefore he opined that the accident in question had left the plaintiff with.a shortening of 2-2.5cm.

The Sessions Court awarded as follows:

1. closed supracondylar fracture }

of the left femur with }

comminution }

2. closed fracture of the mid }

shaft of the left tibia with }

4cm shortening } RM25,000

3. 23cm scar over the lateral

aspect of the left lower thigh RM 3,000

RM28,000

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In the lower court, counsel for the plaintiff submitted for RM50,000 without citing any authorities. The court relied on Balakrishnan Kunjamboo Nair v. Savastine Anthony Francis [1991] 1 CLJ 503; [1991] 2 CLJ (Rep) 327 where for a fracture of the femur with 4cm shortening the court had awarded RM20,000.

Before me, Mr. Brijnandan argued that the court must accept the man as he is, that is, that he is suffering from 4cm shortening and that the court ought to make an award on that basis. I do not think that this is a fair submission to make. A tort-feasor is only liable for the actual and related consequential suffering occasioned to the plaintiff as a direct result of the tort-feasor's negligence. Here the specialist has in no uncertain terms, attributed 1.5-2cm shortening as being due to the earlier unrelated accident. The actual shortening attributed to the subsequent accident is 2-2.5cm shortening. This is the damage that the present defendant is liable for. In any case there was evidence led that the plaintiff had already made a claim for the previous 2cm shortening through another counsel. Thus Mr. Brijnandan's request to treat this case like the egg-shell cases is totally out of line as the plaintiff cannot be allowed to enrich himself twice, over the same injury.

Counsel for the plaintiff referred me to Juminah bte Tongkon & Anor v. Yim Kam Cheng & Anor [1991] Mallal's Digest para 990 where in 1991 the court awarded RM40,000 for a fracture of