JUDGMENT

Nik Hashim JCA:

Background

At about 5.20pm on 16 August 2002, the appellant, a 40 year old senior journalist with Bernama, was hit on his head by a 13.4kg safety wheel which fell off of a monorail train on a test run whilst he was crossing the road at Jalan Sultan Ismail, Kuala Lumpur. He suffered serious head injuries as a result.

As a result of those injuries he suffered, the appellant filed a civil suit against the respondents for their negligence in operating the monorail train. In the statement of claim, the appellant claimed general damages in the sum of RM5,000,000 and special damages. In their defence, the respondents disputed the claim and alleged that the injuries suffered by the appellant were caused wholly or partly due to his own negligence.

Pending the trial of his action, the appellant filed an application for an interim payment of RM250,000 in respect of damages pursuant to O. 22A of the Rules of High Court 1980 (the RHC).

On 20 September 2004, the learned High Court judge dismissed the appellant's application essentially on two grounds:

(i) the appellant had not proven that his condition had deteriorated in the two years since the accident; and

(ii) the le