JUDGMENT

Salleh Abas FJ:

The Facts

The facts in this appeal are as follows.

The respondent was a trained school teacher. He became a teacher on 2 January 1969 by joining what was then known as the Unified Teaching Service and was subsequently posted to Secondary School Tengku Idris Shah, Kapar Selangor. In 1971 he sat for the Higher School Examinations and passed. His results were not spectacular but good enough to enable him to further his studies in a local university. In the following academic session, i.e. 1972/1973 session, which began in June 1972, he enrolled as a student of University Science Penang to follow a course in social science, leading to a degree of Bachelor of Social Science. To enable him to pursue his academic studies, the Government gave him study leave from 1 June 1972 to the end of the course. For the first six months, i.e. from 1 June 1972 to 18 December 1972 he was on half-month pay leave and thereafter the leave was without pay. He also signed the usual agreement with the Government binding him to serve the Government for seven years after the completion of his academic studies.

He passed his first year examinations in 1973, although he was referred in a few subjects, but he eventually passed these subjects at a subsequent examination.

On 13 October 1973 whilst riding his motor cycle along Green Lane, Penang a motor car bearing registration No. AD 7353 driven by the appellant collided into him. He sustained serious injuries and was admitted to General Hospital Penang and later to General Hospital Kuala Lumpur. Because of the accident the University gave him leave of absence for two sessions: 1973/1974 and 1974/1975 sessions. He resumed his studies in the 1975/1976 session as a second year student, but failed badly in his examinations. The University allowed him to continue his studies for another session, i.e. the 1976/1977 session, but after performing badly in the first term of that session, he was asked to leave, and so left the University in early 1977, and since then he has been unemployed. His father arranged for him to give private tuition, but after teaching for one week he gave up the job because he was unable to concentrate, and so has since remained unemployed.

He sued the appellant for general and special damages. Liability having been agreed between the parties at the ratio of 90% against the appellant and 10% against the respondent, the case was contested on determination of quantum for damages only. At the outset of the hearing in the Court below the parties informed the Court that special damages were agreed to as at RM2,300. But at the end of the trial, the learned Judge awarded another item of special damages in addition to the agreed figure of RM2,300 which was for the repairs of the respondent's motor cycle and transport to and from hospital. This item is a pre-trial loss of income amounting to RM65,945. The award is thus as follows:

A. General Damages

(i) Pain and suffering and loss of amenities RM 80,000

(ii) Post-trial loss of earnings RM231,000

B. Special Damages

(i) Agreed damages for repair of motor cycle and transport to and from hospitals RM 2,300

(ii) Pre-trial loss of earnings RM 65,945

TotalRM379,245

C. Interest

(i) Interest at 6% on RM80,000 awarded for pain and suffering and loss of amenities from the date of service of the writ to the date of payment; and

(ii) interest at 3% on the total of RM2,300 and RM65,945 awarded as special damages from the date of accident to the date of payment.

The damages so awarded would be borne in the proportion of 90% by the appellant and 10% by the respondent.

The appellant appealed against the decision of the learned Judge on the ground that the award was excessive, whilst the respondent cross-appealed against it on the ground that the learned Judge was erroneous in law and fact in failing to take into consideration certain matters of importance pertaining to the case.

Size of Award and Public Policy

The total amount of award for both