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IN THE HIGH COURT AT PENANG

IN THE STATE OF PENANG, MALAYSIA

[CIVIL APPEAL NO: PA-12B-63-07/2016]

BETWEEN

MOHAMAD AFFANDI BIN MANSOR ... APPELLANT

AND

TAN LEE GUAN ... RESPONDENT

(IN THE SESSIONS COURT AT BUTTERWORTH

IN THE STATE OF PENANG, MALAYSIA
SUMMONS NO. A53KJ-83-11/2013)

BETWEEN

MOHAMAD AFFANDI BIN MANSOR ... PLAINTIFF

AND

TAN LEE GUAN ... DEFENDANT

GROUNDS OF JUDGMENT

A. INTRODUCTION

[1] The appeal before this court is against the decision of the learned
Sessions Judge only on the issue of quantum, specifically special
damages made on 24.06.2016. The issue of liability whereby the
Respondent (Defendant) has been imputed total liability for causing the
accident is not the subject of the appeal.
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[2] The plaintiff has filed the appeal against the decision of the learned
Sessions Court Judge in not granting awards for these claims of the
plaintiff:

a) costs of future left and right above knee prosthesis.

b) costs for physiotherapy and occupational therapy.

c) motorised wheelchair.

d) special vehicle maintenance and repair.

e) home renovation involving levelling of ground level, constructing

a ramp, steel mash frame with accessories, constructed wooden
bed with fiberlux mattress, special wardrobe with low shelf and
lower hanger area, personalised washroom and accessories,
washroom wheelchair, kitchen renovation and automatic gate.

f) surgery at Gleneagles Hospital.

g) loss of earnings of 6 months for his brother to accompany the

plaintiff to Cheras rehabilitation hospital.

[3] The defendant has also filed a cross appeal on quantum against
these awards made by the learned Sessions Court Judge:

i) RM36,400 for future travelling expenses to Hospital Cheras

for 26 times.

ii) RM6,240 for future food allowance of the plaintiffs brother

at Cheras Hospital.

iii) RM 3,120 for the plaintiffs future food allowance

iv) RM91,584 for light weight wheelchair - future

v) RM20,670 for future anti-gravity chair

vi) RM3,858 for pain management device and accessories

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vii) RM11,024 for muscle power development.

[4] This court made the decision on appeal to give an award to the
plaintiff only for item (g) of the appeal to the sum of RM 13,800.00 and
also allowed the cross appeal of the defendant for item (iv) reducing the
award to RM 60,000.00 with the rest of the decisions of the learned
Sessions Court Judge not being disturbed. The plaintiff being dissatisfied
with the decisions made has filed a further appeal to the Court of Appeal
hence these grounds of decision.

B. PRINCIPLES OF LAW

[5] In coming to its decision this court has considered the principles
laid down in these cases:

i) In Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323

wherein it was held by the Federal Court that:

The principle that should guide this Court in determining

whether it should interfere with the quantum of damages is
crystal clear. What is also clear is that much depends on the
circumstances of each case in particular the amount of the
award. In a particular case therefore it is for the appeal court
to consider whether in the light of the circumstances of that
case there is an erroneous estimate of the amount of the
damage in that, either there was an omission on the part of
the Judge to consider some relevant materials, or he had
admitted for purpose of assessment some irrelevant
considerations. If the Court is satisfied or convinced that the
Judge has acted upon wrong principles of Jaw then it is
justified in reversing; indeed, it is its duty to reverse the
finding of the trial Judge.

ii) In the case of Ong Ah Long v. Dr S Underwood [1983] CLJ

Rep 300 it was decided by the Federal Court:
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It is a well-established principle that special damages in

contrast to general damages, have to be specifically pleaded
and strictly proved. They are recoverable only where they can
be included in the proper measure of damages and are not too
remote (see Halsburys Laws of England 4th Edn., Vol 11
p.218 para.386). That in our view is the cardinal principle
adopted by all courts both in England and in this country.

The reason that special damages have to be specifically

pleaded is to comply with its object which is to crystallise the
issue and to enable both parties to prepare for trial (per
Edmund Davies LJ in Domsalla v. Barr [1969] WLR 630,634).
In special damages claims the exact loss must be pleaded
where the precise amount of item of damages has become
clear before the trial either because it has already occurred
and become so crystallised or because it can be measured
with complete accuracy (MacGregor on Damages 14h Edn.,
p.1012 para. 14 98).

iii) Raja Azlan Shah CJ (Malaya) in the case of Salbiah & Anor
v. Jamil bin Harun [1981] 1 LNS 106 laid down that:

It must be remembered that the purpose of damages is to try,

so far as humanly possible, to put the victim back to the
position he would have been in but for the accident. The
damages must be fair, adequate and not excessive. A reasoned
judgment must therefore be given by the judge, following legal
principles and precedents. Other awards in other cases should
normally be prayed in aid, but consideration must be given
where the circumstances differ.

C. ISSUES CONSIDERED - PLAINTIFFS APPEAL

[6] This case and appeal hinges very much on the evidence of PW9 and
DW1 in determining the condition being endured by the plaintiff
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especially on the issue of his rehabilitation. The court is more inclined to

accept the evidence of DW1 for having treated the plaintiff for more than
2 years (May 2013 to November 2015) whereas PW9 only saw the
plaintiff in preparing the report to institute this claim. This court is also
convinced that DW1 has the necessary background and expertise in
rehabilitation being the Head of Rehabilitation Department of Hospital
Pulau Pinang compared to PW9 whose qualification is grounded on
psychology rather than rehabilitation.

Costs of left and right above knee prosthesis

[7] The plaintiff suffers from above left knee amputation and below
right knee amputation but under this item the plaintiff is claiming for
above knee prosthesis even for the below right knee amputation. This is
done on the basis of the evidence of Dr M Shanmugam (PW8) who has
recommended that an above right knee amputation be performed due to
the stiffness of the knee. The defendant produced an evidence in rebuttal
in the form of Dr Azuhairy bin Azib (DW3) who testified that a surgical
procedure called quadriplasty as a form of treatment of the right knee
would be sufficient to rectify the stiffness of the knee thus preventing a
further above knee amputation of the right leg.

[8] The plaintiff has already been using SOCSO provided basic
prosthesis for his lifetime which then will replaced with advanced
prosthesis (K3). The evidence of DW1 is that once the plaintiff is adept at
the use of the basic prosthesis then only can he be upgraded to use the K3
prosthesis which will also be funded by SOCSO. At the present moment
there is no definite confirmation whether the K3 is at all necessary to be
used by the plaintiff.
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[9] The learned Sessions Court made the finding to dismiss this claim
due to the fact that the use of K3 is not required for the plaintiff at this
present time and should the need arise the K3 will then be funded by
SOCSO. This court views this as a finding of fact made by the learned
Sessions Court Judge based on the testimonies presented before him and
it is trite that the court in exercising its appellate jurisdiction should be
reluctant to disturb such findings unless there is a clear misappreciation
of the prevalent facts committed by the judge of first instance.

[10] The plaintiff solicitor argues that the plaintiff is entitled to these
claims for prosthesis and particularly by the use of Section 28 (1) (a) of
the Civil Law Act 1956 which states:

(1) In assessing damages recoverable in respect of personal

injury which does not result in death, there shall not be taken
into account -

(a) any sum paid or payable in respect of the personal

injury under any contract of assurance or insurance,
whether made before or after the coming into force of
this Act.

[11] It is the contention of the plaintiff solicitor that even though

SOCSO has provided the currently used prosthesis of the plaintiff and
would also provide the K3 prosthesis should the need arise, the plaintiff
could and should be compensated by the defendant based on the
interpretation of the quoted section and the reliance on the case of Soo
Cheng Lin v. Dr Kok Choong Seng & Anor Civil Appeal No. B 02-710-
03/2013 as decided by the Court of Appeal.

[12] This court however prefers to rely on the reported Court of Appeal
decision of Sathisvaran Chandrasegaran v. Agilan Vanmugelan & Anor
[2012] 3 CLJ 450, a decision by Raus Sharif PCA (as he then was) which
held that:
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The sum paid for the medical expenses were out of pocket
expenses and was therefore special damages. The test to apply in a
claim for special damages would be whether the 1 st respondent had
incurred those expenses or had paid an amount which resulted in a
loss to him. Since the 1st respondent did not pay the medical
expenses, he suffered no loss and therefore, was not entitled to such
claim. Further, to allow such claim would tantamount to
facilitating the 1st respondents enrichment and it would be
contrary to universal rule that he is not allowed to recover
something which he has not lost.

[13] This court has decided not to interfere with the decision of the
learned Sessions Court Judge in not granting an award for this claim.
There is no certainty based on the evidence adduced in court that the K3
would be required by the plaintiff. No pocket expenses has been incurred
by the plaintiff in this case and to allow this claim would lead to a
situation of unjust enrichment being obtained by the plaintiff. There is
also evidence that SOCSO has provided the prosthetis being used by the
plaintiff and would provide the K3 in the event that it is eventually
needed. Furthermore, the right knee amputation is below the knee
whereas the computation made by the plaintiff is for above knee
amputation.

Private Physiotherapy and Occupational Therapy

[14] The learned Sessions Court Judge for these 2 claims accepted the
evidence of the defendants witness, Dr Mohd Izmi bin Ahmad @
Ibrahim (DW1) in determining this issue. He testified that the Cheras
Rehabilitation Hospital has sufficient facilities to provide physiotherapy
and occupational therapy thus private appointments would be
unnecessary. Given this evidence these claims were dismissed.

[15] This court at the appeal stage takes cognisance that DW1 who has
supervised the taking care of the plaintiff for the duration between May
2013 until November 2015 would be the person most suited to determine
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the issue of therapy for the plaintiff rather than Dato Dr Balwant Singh
Bains (PW9) who only saw the plaintiff in order to provide a report to
assist the plaintiffs claim. There is also evidence of the plaintiff himself
showing a certain reluctance to attend to the appointment dates fixed as a
process to facilitate his rehabilitation.

[16] The principle of the plaintiff having to mitigate his loss being
applicable has been decided in Yoong Leok Kee Corporation Sdn Bhd v.
Chin Tong Hai [1981] 2 MLJ 21:

The law is clear in that as enunciated by Viscount Haldane L.O in

British Westinghouse Electric and Manufacturing Company Limited
v. Underground Electric Railways Company of London, Limited
(House of Lords) ... the fundamental basis is thus compensation for
pecuniary loss naturally flowing from the breach; but this first
principle is qualified by a second, which imposes on a plaintiff the
duty to taking all reasonable steps to mitigate the loss consequent
on the breach, and debars him from claiming any part of the
damage which is due to his neglect to take such steps

Thus the onus falls upon the respondent to take all reasonable steps
to mitigate the amount of damage. It is evident that the respondent
acted unreasonably when he left the hospital against medical
advice.

[17] This court finds no reason to disturb the findings of the learned
Sessions Court Judge on this issue as there is no evidence to show that
the facilities at the Cheras Rehabilitation Hospital (which would be
provided by SOCSO) would not be able to cater to the needs of the
plaintiff. Furthermore, this court concurs with the argument of the
defendant counsel that the rehabilitation process is not a lifelong process.
The occupational rehabilitation would no longer be needed once the
plaintiff is adapted and able to move back into society.
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Motorised Wheelchair

[18] DW1 gave evidence that the motorised wheelchair as recommended

by PW9 is not suited for the plaintiff as it is more suitable for spinal cord
injury victims. In this matter there is without a doubt that the plaintiff
does not suffer such a problem as his condition involves amputation of
both legs. Furthermore, he has been provided with a pair of prosthesis
and with due time as he adapts, the use of the prosthesis would be more
beneficial to the plaintiff.

[19] This court views this claim to be unnecessary hence retains the
decision of the learned Sessions Court Judge in dismissing this claim.

Motor Vehicle with Maintenance and Repair

[20] This court finds no reason to disturb the finding of the learned
Sessions Court Judge in dismissing this claim. The claim arises from the
argument raised that the plaintiff is now so traumatised that he cannot
ride the motorcycle for the handicapped. The video exhibited as D43
showing the plaintiff riding the motorcycle for a short distance is not
conclusive to reflect this.

[21] The plaintiff however never had a driving licence for a motor car
nor has he ever driven a car and to even suggest that a motor vehicle
would be a better option for him now is not the most convincing of
arguments. Furthermore, DW1 has given evidence that the plaintiff can
be taught to use a motorcycle specially customised for the handicapped at
the Cheras Rehabilitation Centre and this is the more acceptable
argument hence this court affirms the decision of the learned Sessions
Court Judge in not entertaining this claim.

Claim for home repairs involving levelling of ground level,

construction of a ramp, steel mash frame with accessories,
constructed wooden bed with fiberlux mattress, special wardrobe
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with low shelf and lower hanger area, personalized washroom and
accessories, washroom wheelchair kitchen renovation and automatic
gate.

[22] This court has taken into consideration the case of Leng Yang Sua
& Anor v. Ng Yen Kee & Anor [1986] CLJ (Rep) 448 before deciding:

A claim for special damages must be strictly proved. Where the

best evidence available has been produced, the court will do the
best it can to make some award. But where evidence is or ought to
be available and is not produced, the court should be not be left to
speculate what would be an appropriate sum to award. Since the
1 st plaintiff did not keep accounts of his purchases and sales, his
profits or wages paid to his employees and his tax returns, no
award was made for loss of earnings.

[23] The only evidence for these claims is provided by PW9 and this
court finds this insufficient in accordance to the cited case. PW9 is
definitely not the person qualified to give the figures to state the figures
that he has quoted. The lack of any additional evidence has made the
claims unjustifiable and unwarranted.

Surgery at Gleneagles Hospital

[24] The learned Sessions Court Judge has made a finding of fact based
on the evidence presented before him that the testimony of DW3 that the
quadriplasty procedure would be the more appropriate procedure and it is
without any incurred costs due to the fact that the plaintiff is now a
disabled person. This court has decided not to interfere with the findings
of fact made by the learned Sessions Court Judge.

Loss of earnings of the plaintiffs brother.

[25] On appeal this court has decided to grant an award for this claim.
Although the learned Sessions Court Judge states that the plaintiff would
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be adequately taken care of and assisted at the Cheras Rehabilitation

Centre by the staff and personnel, it is the considered view of this court
that the plaintiff would need the presence of a family member to assist
him. The staff and personnel at the centre would not be concentrating
solely on the plaintiff as there would be other patients to be attended to.
The presence of the brother whose concentration and consideration would
be solely on the well- being of the plaintiff would be necessary and of
great assistance. This court hereby allows the sum of RM 13,800.00 for
this claim.

D. DEFENDANTS CROSS APPEAL

[26] The learned Sessions Court Judge has not prepared any grounds for
his decision. This court however decides not to interfere with the
decisions pertaining to awards for future trips to Cheras, food allowance
for the plaintiff and his brother, compensation for anti-gravity chair, pain
management device and accessories as well as muscle power
development hence dismissing the cross appeal on these issues. These has
not resulted in a further appeal to the Court of Appeal by the defendant.

[27] This courts attention however is turned to the award of RM91,

584.00 for the light weight wheelchair - future which doesn t seem to be
supported by any evidence. Given this situation, this court finds that the
award granted is manifestly excessive in the circumstances thus decides
to reduce the award to RM60,000.00.

E. CONCLUSION

[28] This court in deciding this appeal is mindful that the appellate court
should not give preference to its own figure simply because it disagrees
with the figure arrived at by the trial judge as decided in the case of Tan
Cheong Poh & Anor v. Teoh Ah Kew [1995] 3 MLJ 89 wherein it was
held by the Court of Appeal and quoted that:
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It is trite that the appellate court should not give preference to

its own figure simply because they disagree with the figure arrived
at by the trial Judge; it will only interfere if it is satisfied that the
Judge has acted on a wrong principle of law or has for other
reasons made a wholly erroneous estimate of the damage suffered.

[29] This court hereby allows the plaintiffs appeal on quantum as

regards the loss of wages of the brother. The cross appeal by the
defendant on the future expenses pertaining to the light weight wheel
chair is also allowed with the other awards made by the learned Sessions
Court Judge not being disturbed.

Dated: 5 JULY 2017

(AZMI ABDULLAH)
Judicial Commissioner
High Court of Malaya, Penang

Counsel(s):

For the appellant/plaintiff - Rhina Bar; M/s Rhina Bar & Associates

Advocates and Solicitors

No. 11, Love Lane,
10200 Penang
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For the respondent/defendant - Jannu Babjan; M/s P R Manecksha &

Associates

Advocates & Solicitors

Suite 9-05, 9 th Floor,
Menara Zurich,
No.170, Argyll Road, Gorgetown,
10500 Penang