JUDGMENT

Syed Agil Barakbah SCJ:

This appeal relates to an accident claim for damages by the first appellant/plaintiff who was injured when the motorcycle on which he was a pillion rider and which was being ridden by one Hong Pau Kong met with an accident with a motorcar which was driven by the first respondent as servant or agent of the second respondent. The first appellant was thirteen years old at the time of the accident and the suit was filed by his father and next friend, i.e. the second appellant. He was already an adult at date of the hearing.

In the Court below, the question of liability was not an issue since the respondents admitted full liability for the accident. The learned Judge having heard evidence on the quantum of damages, awarded in favour of the appellants the sum of RM32,775 as general damages and RM4,181.50 as special damages with interest and costs. The appellants were not satisfied with the award for general damages alleging that the amount was insufficient and manifestly inadequate. They appealed at first on four grounds, but abandoned the first three which were concerned with the alleged inadequacy of the award for general damages, including no award for loss of amenities. They now said through counsel that the sum was reasonable and adequate. The only ground left was the fourth and last ground. The issue was whether the first appellant was entitled to an award for future loss of earning capacity in view of the serious injuries sustained by the first appellant. He was admitted to General Hospital Melaka on the same day of the accident, i.e. 7 August 1981. He sustained the following injuries:

(1) Compound fracture of the right femur.

(2) Fracture of the left clavicle.

(3) Compound fracture of the right tibia and fibula resulting in 2 cm shortening to the right leg.

(4) Supramalleolar fracture of the right ankle resulting in foot drop.

He remained in hospital for about three months for necessary treatment and was discharged on 6 November 1981. After discharge, he was examined several times by the Orthopaedic Surgeon of General Hospital Melaka, Dr. Thomas Verghese. His report on the patient dated 23 September 1982 relating to disabilities sustained was included in the agreed bundle of documents. (Pages 82 - 84 of the Appeal Record). Subsequently, the first appellant was examined by Professor N. Subramaniam of the Orthopaedic Surgery Unit, University of Malaya, on 8 November 1983. The learned Judge noted conflicting opinions in the two medical reports regarding the last item of the appellant's injuries. According to Dr. Varghese:

The right foot drop (paralysis of right foot) resulting from the lateral popliteal nerve injury has partially recovered now. He should recover full use of his right foot in time.

(Page 84 para 7 of Appeal Record).

On the other hand, Professor Subramaniam, who testified as an expert witness for the appellant, wrote in his report:

The changes in the right ankle joint are not grass at the moment but the course of say, next 5 or 10 years it is likely to aggravate and be the cause of pain. It is also unlikely that he will ever regain complete movement in the ankle joint which means that he is going to have some difficulty in squatting and also a great deal of difficulty in playing field games.

In the course of his evidence, he made the following observations:

Foot drop still persistent when I examined him this morning. This is due to injury to nerve on right leg. He may find it difficult to play ping pong. He will be able to walk fast. Yes surgical scars are there. He is able to ambulate with a limping gait.

The learned Judge after taking note of the conflicting medical opinions took a middle course by reconciling the differing evidence "by assuming that the disability has been reduced but not completely healed". It was not clear at first whether the Judge was having his mind the question of loss of amenities. He went on however to refer to similar cased reported in Dass Quantum in