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BETWEEN
AND
BETWEEN
AND
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:
c) motorised wheelchair.
[3] The defendant has also filed a cross appeal on quantum against
these awards made by the learned Sessions Court Judge:
[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:
iii) Raja Azlan Shah CJ (Malaya) in the case of Salbiah & Anor
v. Jamil bin Harun [1981] 1 LNS 106 laid down that:
[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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[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:
[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.
[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:
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
[19] This court views this claim to be unnecessary hence retains the
decision of the learned Sessions Court Judge in dismissing this claim.
[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.
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:
[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.
[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.
[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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[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.
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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(AZMI ABDULLAH)
Judicial Commissioner
High Court of Malaya, Penang
Counsel(s):
For the appellant/plaintiff - Rhina Bar; M/s Rhina Bar & Associates