Goh Wei Sin v Othman [108] MD 6 RM 3,000.00 for cerebra conc!""ion, RM #0,000.

.00 for Sca $ haematoma, intracerebra haemorrha%e, "!&!ra haemorrha%e, cerebra oe&ema an& craniotom'( )havane"an v" *ri"hnan [#00#] # M+, -i.RM 3,000.00 for cerebra conc!""ion( Moh& /in bin 0b&! ah v 01ni1a [#000] M+,2 633. RM34,000.00 for +o"" of con"cio!"ne"", intracerebra haemorrha%e, o"" of hearin% an& " i%ht nerve atro$h'..5
(c) Cerebral concussion and thrombosis In Mohamed Khirul Mizan v Shafie [2002] 6 MLJ 4 ! , the Court awarded "M#$000%00 for cerebral concussion. In Masitah bin &eran' [!(((] M) !2*6 , the Court awarded a sum of "M*$000%00 for the same type of injury. The 2nd Plaintiff sustained cerebral concussion together with I C thrombosis. !e "uantify damages for this type of injury to be at "M +$000%00.

6ea& in7!rie" 608 M9 *:0; < 0;OR =. D9W0; >0;D0R080 *2?6:;G 2)0R0
6:G6 ?O2R) S0>06 < S0R0W0*, *2?6:;G [?:=:+ 0@@90+ ;OA 1#.11.#00B.::] 0>D2+ 0/:/ R06:M , 18 ,0;20R8 #008 +O?0+ 02)6OR:)8: Maintenance and repair - Negligence - Road accident - Tree falling on vehicle travelling along road - Statutory obligation - Whether duty of care owed - Local Authorities Ordinance 1 !" ss# 11 " 1$%&'( - )ity of *uching North Ordinance 1 ++" s# '&1( )OR): Negligence - ,reach of statutory duty - Road accident - Tree falling on vehicle travelling along road - Local authority - Statutory obligation - Whether duty of care owed - Local Authorities Ordinance 1 !" ss# 11 " 1$%&'( - )ity of *uching North Ordinance 1 ++" s# '&1( )OR): Negligence - -uty of care - Road accident - Tree falling on vehicle travelling along road - Local authority - Statutory obligation - Whether duty of care owed - Local Authorities Ordinance 1 !" ss# 11 " 1$%&'( - )ity of *uching North Ordinance 1 ++" s# '&1( RO0D )R0CC:?: Negligence - ,reach of statutory duty - Road accident - Tree falling on vehicle travelling along road - Local authority - Statutory obligation - Whether duty of care owed - Local Authorities Ordinance 1 !" ss# 11 " 1$%&'( - )ity of *uching North Ordinance 1 ++" s# '&1( )OR): -a.ages - Assess.ent - Negligence - ,reach of statutory duty - Special da.ages - /vidence of clai.s - Whether substantiated D0M0G9S: Action for - 0n1ury sustained by reason of breach of statutory duty Assess.ent - Special da.ages - /vidence of clai.s - Whether substantiated D0M0G9S: 2ead in1ury - 3racture of left parietal region with e4tradural hae.ato.a 5eneral da.ages - Assess.ent of su. to be awarded - 6rinciples applicable The 1st appellant was driving his taxi ('vehicle') along a road named Jalan Crookshank ('said road') when a tree fell on his vehicle, resulting in him sustaining in uries and the vehicle, which !elonged to the "nd appellant, !eing !adl# damaged$ The 1st appellant !rought a claim against the respondent for general and special damages due to in uries suffered, while the "nd appellant's claimed special damages for the damaged vehicle$ The appellants' action was premised on negligence and !reach of statutor# dut# on the respondent's part$ Their case was that the place of the accident was within the urisdiction of the respondent pursuant to s$ % of the Cit# of &uching 'orth (rdinance 1)** ('1)** (rdinance')$ The respondent was thus under a dut# to maintain the trees in a health# state to ensure that the# did not pose a risk and danger to the pu!lic when driving along the said road$ The respondent, however, su!mitted that it had no statutor# o!ligation under

the +ocal ,uthorities (rdinance 1))- ('1))- (rdinance') to attend to the maintenance and preservation of the trees$ The respondent also averred that the alleged place of the accident . lot /1, which was state land . was not at an# time a pu!lic place within the meaning of the 0u!lic 0arks and 1reens (rdinance 1))% ('1))% (rdinance')$ 2t was further contended that the place was never vested in the respondent under the 1))% (rdinance and that, therefore, it had no general control or care for the protection and preservation of the trees$ The sessions court dismissed the appellants' claim against the respondent$ 3ence, the present appeal, in which two main issues were raised: (i) whether the respondent had a statutor# o!ligation under the relevant laws to maintain, manage and exercise control over the trees on lot /1, which had not !een ga4etted and declared as a special area under s$ %(1) of the 1))% (rdinance and, if so, whether the respondent had !een negligent in its dut# to maintain the trees on lot /15 and (ii) whether the respondent owed the appellants a dut# of care under s$ 11) of the 1))- (rdinance to maintain the area, notwithstanding that lot /1 had not !een ga4etted and declared as a special area under s$ %(1) of the 1))% (rdinance$ 6e &A D15 The 1))% (rdinance had no application in this case and was irrelevant$ The 1))% (rdinance is a special (rdinance for the creation and preservation of greens and pu!lic parks$ 2t is not a general legislation that confers powers of a pu!lic or local authorit# on the respondent$ The respondent's powers are found in the 1))- (rdinance and the 1)** (rdinance$ 6pon a li!eral reading of these two (rdinances, it is o!vious that the authorit# and powers of the respondent extend to ever# inch of the area within its urisdiction regardless of whether it is state land or privatel# owned land$ The onl# difference is that for privatel# owned land or propert#, the respondent is under no statutor# o!ligation to maintain and make it safe for the pu!lic$ 3owever, under s$ 1"7(%) of the 1))- (rdinance, the respondent has a responsi!ilit# to ensure that the private owners keep their propert# safe for the pu!lic$ The respondent enforces this responsi!ilit# !# issuing notices to the private propert# owners to take appropriate action to remove an# source of danger emanating from the propert# that is dangerous to the pu!lic, particularl# users of pu!lic roads$ (n the same !asis the respondent is entrusted with a dut# to maintain or cut down impugned diseased trees that grow on state land where the owner is the state government, if the land is within the urisdiction of its declared local limit$ The respondent is the agenc# entrusted to look after the local authorit# area where the said road was situated and where the impugned diseased tree fell on the 1st appellant's taxi$ ,s to whether the respondent is a crown agent, it is not in dispute that the respondent, although esta!lished under its own (rdinance, is machiner# of the government entrusted to provide local authorit# services to the pu!lic within its urisdiction$ (paras 1) 8 "7) D#5 (n the second issue, the law as found in s$ %(1) of the 1)** (rdinance delineates the area of Cit# of &uching 'orth, as descri!ed in the 9chedule to the (rdinance$ This area includes lots :% and /1, and it is not disputed that the respondent is the designated local authorit# for the area$ 6nder s$ 11) of the 1))- (rdinance, a local authorit# has powers and shall exercise functions in respect of pu!lic roads, other than a federal road, within its local authorit# area$ 0ursuant to paras$ (f), (g) and (m) of that section, these powers and functions include maintaining road shoulders or verges, pavements and pu!lic drains5

providing landscaping for !eautification of pu!lic roads and to do such act or take such action as ma# !e necessar# to ensure the safet# and convenience of the pu!lic on an# road in a local authorit# area$ These provisions, especiall# para$ (m) of the section which stresses on the safet# of the pu!lic using pu!lic roads, must !e interpreted li!erall# in order to give effect to the provisions$ This interpretation is to !e preferred if the section is read together with s$ 1"7(%) of the 1))- (rdinance$ ;rom the reading of these two provisions it is o!vious that a local authorit# has a dut# to maintain all pu!lic roads, and also the power to direct private road owners to maintain their private roads for the safet# of the pu!lic who uses the roads$ (paras "1 8 "") D35 2n the circumstances therefore, the answer to the two issues raised in this appeal was in the positive$ ,ccordingl#, the respondent was lia!le for negligence in that it had !reached its statutor# dut# to maintain the said road to ensure that it was safe for pu!lic use$ (para "%) DE5 2n respect of the 1st appellant's claim for special damages, his claims for loss of income and nursing care must !e strictl# proved$ 9ince there was a lack of evidence to prove the claims, the# were !oth disallowed$ 3is claims for medical !ills from the hospital, cost of transportation for relatives to and from the hospital and other minor miscellaneous costs were allowed as the# were well supported !# documentar# evidence$ (paras "*, "), %7, %1, %" 8 %%) D45 Re%ar&in% the 1"t a$$e antF" c aim for %enera &ama%e", he ha& "!ffere& a fract!re of the eft $arieta re%ion Gith e-tra&!ra haematoma for Ghich he ha& to be o$erate& !$on$ 3aving regard to the in uries sustained !# the 1st appellant and the awards given for similar in uries in the relevant authorities, the figure suggested !# the 1st appellant was on the high side$ There was no medical evidence or report suggesting that he suffered an# disa!ilit#, temporar# or permanent, after the discharge from the hospital$ There was also no evidence to show that he was una!le to return to work as a taxi driver$ 2t was also pertinent to consider that in cases where the court had found neurological disa!ilities or otherwise, the award was ver# much less than the <=177,777 suggested !# the 1st appellant$ :n thi" in"tance, there Gere no ne!ro o%ica &i"abi itie" an& no $ermanent in7!r' that co! & re&!ce the 1"t a$$e antF" ca$acit' to f!nction a" norma a" before the acci&ent. 0 "!m of RM30,000 . taHin% into acco!nt the inf ationar' factor . Go! & be fair an& rea"onab e. (paras %:, %/, %- 8 %>) D65 ,s to the "nd appellant's claim for special damages amounting to <="/,777 for the vehicle, in the a!sence of an# su!stantive evidence as to the value of the vehicle at the time of the accident, the court was una!le to make a udicial assessment of the value of the vehicle that was damaged for the purpose of the claim under this head$ 'evertheless, there was a value to !e attached to the vehicle at the time of the accident and, in the circumstances, a nominal sum of <=177 would !e awarded for the loss of the vehicle$ (para %*, %) 8 :7) ?a"e" referre& toA ?a"eD"5 referre& toA 5oh )hin 7ee &infant( v# Lau )hun Leung 81 +9: ML; $ c4ii (refd)

7hangavelu v# )hia *o< ,in 81 +1: )L; $+1 &Rep(= 81 +1: )L; 1'$= 81 +1: $ ML; $>> (refd) +e%i" ation referre& toA +e%i" ation referre& toA Cit# of &uching 'orth (rdinance 1)**, ss$ %(1), -,(1) +ocal ,uthorities (rdinance 1))-, ss$ /, 11), 1"7(1), (%) 0u!lic 0arks and 1reens (rdinance 1))%, s$ %(1), /, -, > <oad Transport ,ct 1)*>, s$ -> 3or the 1st ? $nd appellants - Li. 2eng )hoo= M@s Li. ? Li. 3or the respondent - Stanley /ddy= M@s ,attenberg ? 7al.a Reported by Suresh Nathan [Order accordingly.]