JUDGMENT

Hashim Yeop Sani FJ:

We have disposed of this appeal but we feel that a short written judgment would be in order.

The appeal before the learned Judge was against the decision of the learned President of the Sessions Court, Johor Bahru in respect of the awards of general and special damages. Thus the appeal before the High Court and before us was an appeal against quantum only.

The action in the Sessions Court was commenced by the mother of the deceased who had died in a motor accident. In his written judgment [1984] 1 MLJ 377 the learned Judge sitting in appellate jurisdiction had set out the background of this appeal chronologically and for convenience we will simply reproduce the excerpts from his judgment as follows:

3. The Summons was served on 28 July 1979. The case was first mentioned on 16 August 1979. By the second mention date on 30 August 1979 no defence had been filed and an Order was made precluding the defendant from defending the action.

4. Thereafter the case was fixed for hearing to assess the damages to be paid.

5. However, the case was not proceeded with on 4 October 1979 because plaintiff had gone to Canada. It was adjourned to 7 February 1980. On that day Mr. Matthew Varughese appeared for the defendant.

6. The case was postponed to 28 February 1980 and thereafter there were 6 further postponements before the trial actually began on 6 November 1980, with Mr. Tan Hock Kim as plaintiff's Counsel.

7. In the interim, on or about 11 March 1980, plaintiff's solicitors made their first amendment to the Statement of Claim. The funeral expenses were increased from RM1,000 to RM2,545.25.

8. On 20 July 1980, a second amendment was made. This time the name of the deceased's father was struck out from the Statement of Claim as being one of the dependants for the purposes of the claim under s. 7 of the Civil Law Act 1956.

9. About this time it seems that solicitors representing the parties had some discussion about a proposed agreed bundle of documents which was to be used at the trial.

10. On 16 July 1980, plaintiff's solicitors Tan & Tan sent a letter to the defendant's solicitors Varughese & Co. A conversation was referred to on 15 July 1980 regarding an agreed bundle of documents handed to the defendant's solicitors on 26 June 1980 seeking the agreement of the defendant's solicitors for their inclusion in the agreed bundle. This letter was tendered in evidence in the Court below and marked Exhibit P9.

11. A reply was sent by the defendant's solicitors dated 23 July 1980. The letter stated:

We have no objection to the inclusion of the documents mentioned in para. 2 of your letter of the 16th instant.

But the letter also contained an offer to agree the funeral expenses at a sum stated. Most importantly the letter was marked "Without Prejudice".

12. The subsequent history of this matter quite clearly suggests that the parties did not put up an agreed bundle of documents nor was there any agreement as to the funeral expenses or for that matter any other damage, general or special claimed by the plaintiff.

13. So when the trial began on 6 November 1980 the entire question of the damages to which the plaintiff was entitled was wide open.

It will be noticed from the history of the case that the case should really have been a simple and straightforward one. In our view the case became unnecessarily protracted largely because there was insufficient cooperation between the lawyers involved and subsequently insufficient restrain on the part of the learned Judge in the exercise of appellate powers. Much scholarship had gone into the written judgment of the learned Judge and a very substantial part of the judgment was devoted to the modes of proving documents according to the best evidence rules. But in the assessment of damages in a case like this a simpler approach would also help.

Firstly on the question of the number of years purchase where we dismissed the appeal against the decision of the learned Judge to revise