LAW549 (TORTS) ASSIGNMENT: PERSONAL INJURIES (June 2020)

Twenty-year old Alex worked part time delivering pizzas for a pizza restaurant called
Pizza Paradise. He earned, on average, RM700 a month, depending on the number of
deliveries he made. He also, occasionally, received tips from customers. This averaged
RM100 a month. From these, he spent RM100 a month on his daily expenses such as petrol
for his motorcycle. Every month, on receiving his salary, he would give RM100 to his
mother.

On the evening of 25 August 2019, Alex was riding his motorcycle to deliver pizza to
a customer at Section 12 Shah Alam. A few minutes after leaving the restaurant, Alex noticed
a motorcycle behind him going in the same direction. As Alex approached the traffic lights,
he saw that the light was turning red. Alex slowed down, intending to stop. However, the
motorcyclist behind him failed to notice the red light. The motorcycle crashed into Alex,
causing him to fall and hit his head against a road divider. Despite wearing a safety helmet,
Alex suffered severe injuries to his head. The motorcyclist admitted that he was distracted
when his mobile phone vibrated, causing him to hit Alex.

Alex was taken by passersby to Spring Medical Centre, a private hospital located near
the scene of the accident. Doctors said that Alex broke his left arm and leg because, when he
fell, the left side of his body hit the ground. The head injuries have caused his hearing to be
temporarily impaired. The medical bill amounted to RM30,000. During that time, his parents
visited him every day and they spent RM30 per day on transportation. They also spent
RM200 on vitamins and herbs which they claimed helped Alex to regain his strength and his
wounds to heal. Since his discharge at the end of September, he had gone for weekly out-
patient treatment at the hospital for three months. Each treatment costs him RM100,
including the cost of transportation. Similar treatment at a government hospital costs half the
amount. As a result of the hearing loss, Alex was unable to continue working until three
months after his discharge when his hearing returned.

Alex’s motorcycle and his helmet were damaged during the accident. His parents
spent RM500 repairing the motorcycle

1
In November, an insurance company paid him RM3,000 for the medical insurance which his
employer had taken for him. Alex also received RM500 from his sympathetic colleagues to
help him with his medical expenses.

Alex used to be a very active young man and his favourite past time was painting. In fact, his
hobby had turned into a money-making project when he sold several of his paintings online.
He earned on an average of RM500/month. However, due to the broken arm, he was unable
to paint after the accident.

Early last year, Alex had applied for a one-year management training programme with Pizza
Paradise. The day before the accident, he had received an offer to attend the programme.
During the year, he would be paid a monthly allowance of RM1,000. After the training
period, he would be paid a monthly salary of RM1,500 for a year and his salary would then
increase in the subsequent years. Because of the accident, his employer has agreed to let him
attend next year’s programme instead. Despite this, Alex is unhappy because this would
result in a one-year delay in attending and completing the programme.

Alex has approached you to discuss about his legal redress against the motorcyclist. Advise
Alex as to what damages may be obtained and how such damages will be assessed in
connection to his injuries.
(30 marks)

1. General damages
2
To be simply defined, general damages are awarded to compensate for the direct effects of
the accident, where the claimant’s injuries can be clearly linked to the defendant’s actions or
behaviour which causes the plaintiff to suffer such losses. Section 28A(2) (b) of Civil Law
Act 1957 stated that if the plaintiff’s expectation of life has been reduced by the injury, the
Court, in assessing damages in respect of pain and suffering caused by the injury, shall take
into account any suffering caused or likely to be caused by the accident.

In Alex’s case, he may claim for general damages. General damages being a post-trial
pecuniary loss and pre-trial non pecuniary loss and special damages being pre-trial pecuniary
losses. General damages for pre-trial non pecuniary loss that Alex may claim is the injury
suffered by him, loss of amenities where he suffered temporary loss of hearing that may be
classified under objective loss of bodily faculties, he also may claim for subjective loss where
he can no longer pursue painting as enjoyable occupation.

For him to be able to claim for injuries that he suffered due to the accident, it must be
noted that the court will need the injuries to be itemized. For example, if there are multiple
injuries to various parts of the body, the court will itemize each body part individually. The
case of Chong Chee Kong v Ng Yeow Hin 1, it was stated that the court must be given
unfaltered discretion to take off a certain sum for overlapping. This case highlights the
court’s discretion in examining the injuries and determine the amounts to be compensated. In
Alex’s case, he suffered injuries on his left arm, left leg, and his head. If it is being itemized,
the injuries suffered can be said to be in different parts of his body parts and may not be
overlapping.

Next, as for claim for the temporary loss of his hearing, Alex may be able to claim for
it under loss of amenities. It is a loss of enjoyment of life where the damages will be awarded
for the deprivation, regardless whether the Plaintiff is aware of it or not. The only thing he
need to prove is whether he is deprived of an amenity, as stated in Lim Poh Choo v Camden
and Islington AHA2, the loss can either be temporary or permanent as decided in Lau Ee Ee

1
[1997] 5 MLJ 786
2
[1980] AC 174
3
v Tang King Kwong3, and in the case of Nur Syamimi v Nursedia4 , the court awarded
RM20,000 for partial loss of hearing in the Plaintiff’s right ear. As for Alex’s situation, with
virtue of Nur Syamimi v Nursedia5, as he suffers of losing his hearing temporarily due to
the accident, hence, he may be able to claim for general damages.

1.1 Loss of earning RM700 a month and tips averaged RM 100 for 4 months.

Alex also may claim for loss of his earnings where he was unable to work for three
months starting from the date of his discharge due to his loss of hearing. To claim loss of
earnings, Section 28A of the Civil Law Act 1957 is applicable. Since the accident happened
on August 25th 2019, and he was discharged by the end of September 2019, the action
brought by Alex could be after September 2019 where the Civil Law (Amendment) Act
2019 that amended CLA 1957 has taken effects.

Before further discussion on Section 28A6, the definition for earnings can be found in
the case of Nordin bin Haji Abdul Wahab7 where it was defined as any types of payment
such as wages, salaries, allowances, EPF contributions, fees, profits, commissions, tips &
bonuses. The plaintiff can either claim total loss, or partial and temporary loss, or permanent
and past loss, or future loss.

Since Alex is claiming actual loss of earning, thus it will be in referral to his net
annual income. It means that his earning will be calculated after deducting his income tax and
living expenses. This is supported in the case of Chang Chong Foo v Shivanathan 8 where
on appeal for the case, the Supreme Court held that the claimant’s petrol and meal expenses
should be deducted. The earning also must be legal or capable of being legitimized as in the
case of Lye Seng v Nazori Teh9.

3
[1969] 1 MLJ
4
[2013]
5
Ibid
6
Civil Law Act 1957
7
[1986] 2 MLJ 294
8
[1992] 2 MLJ 473
9
[1998] 3 CLJ 466
4
 Section 28A(2)(c)10 provided several requirements in order to claim for loss of
earnings. The first requirement is the age limit where S. 28A(2)(c)(i)11 as subject to clause 5
of the Amendment Act 12stated that the Plaintiff must not be at the age of sixty or above at
the time of his injuries. The second limb of the same provision also stated that the Plaintiff
must be receiving earnings before his injury by his own labor or gainful activity. In the case
of Dirkje Pieternella Halma v Mohd Noor13, where the court in this case defined that the
term ‘before his injury’ to mean as at the time of the incident. The court held that since the
Plaintiff was on unpaid leave, she was unable to claim since she was not working at the time
of the accident. Section 28A(2)(d)(i) of Civil Law Act 1957 provides that in the case of a
person who was of the age of thirty years or below at the time when he was injured, the
number of years’ purchase shall be 16. In Alex’s case, he may be able to claim since he
fulfilled the age limit and also, he as receiving earning at the time of the accident.

In this case, the accident was occurred on 25 August 2019 and Alex was discharged
from the hospital at the end of September which almost one month in hospital and receiving
weekly out-patient treatment at the hospital for three months. Therefore, almost 4 months
Alex had loss earning of estimated RM 800.00 x 4 = RM 3,200.00. However, since the
amount need to be count from his net actual income as stated in the case of Chang Chong
Foo v Shivanathan14, this calculation may deduct the amount spend by Alex for his daily
living expenses such as petrol for his motorcycle which he spent on the days where he goes to
work.

RM 800.00 x 4 months = RM 3,200.00

RM 3,200.00 – RM 400 = RM 2,800.00.
RM 2,800.00 x 16 = RM 44,800

10
Civil Law Act 1957

11
Ibid

12
Amendment Act 2019

13
[1990]

14
Ibid at 8
5
 1.2 Alex’s disability to paint after the accident which is his source of income due to
his broken arm (earned on an average of RM500/month)

Section 28A(2)(d)(i) of Civil Law Act 1957 provides that in the case of a person who
was of the age of thirty years or below at the time when he was injured, the number of years’
purchase shall be 16. Section 28A(2)(c)(ii) of Civil Law Act 1957, only the amount relating
to his earnings as aforesaid at the time when he was injured and any prospect of the earnings
as aforesaid being increased at some time in the future. In the case of Nazori Teh v Tay Lye
Seng (1995), it was held that the court will take into account the amount the plaintiff was
earning at the time of accident.

As in this case, Alex is at the age of 20 years old and suffered loss of earning due to
his disability to earn money from painting and selling the painting online , which he earned in
average of RM 500.00 per month by selling it, after the accident because of the broken arm
caused by the accident. Through the formula of computation, Alex may be able to claim RM
96,000.00 for loss of earning capacity from unable to paint because of the broken arm from
the accident. The computation is Multiplicand (earning of RM 500.00 per month) x
Multiplier (Age 20 years old, hence fixed at 16). The calculation as below;

= (RM 500 x 12 months) x 16

= RM96,000.00

2. Special Damages

Special damages as explained in the case of Seah Yit Chen v Singapore Bus Service 15,
is the type of additional expense and loss, in terms of money which have actually been
15
[1990] 3 MLJ 144
6
incurred up to the date of the trial. These expenses in practice include fees for medical advice,
and for surgical operations, the cost of treatment and care in the hospital, and the cost of
surgical appliances and of drugs and other prescription.

The special damages in Alex’s case which are claimable will be the medical expenses,
cost of transport and travel expenses by the family member, cost of providing extra
nourishing food, damage to vehicles, and other goods claims. To discuss the special damages
that Alex may be able to claim, the amount must be specifically pleaded and proven and also
easily quantifiable. In another word, the claim must be necessary and reasonable.

2.1 The private hospital medical expenses of RM 30.000.00 from Spring Medical
Centre.

In the case of Yaakub Foong v Lai Mun Keong16, a plaintiff is entitled to have
himself treated in a private hospital if in all the circumstances of the case that is not an
unreasonable thing for him to do. In that case, the treatment in the private hospital was never
an issue so long that the Plaintiff able to prove that the amount that he claimed was
reasonable. In the case of Chai Yee Chong v Lew Thai 17, the court held that if the treatment
was sought at a government hospital, the full amount expended and paid by the person should
be awarded as the court consider it as reasonable. If the plaintiff had sought treatment at a
private hospital, he must prove that that he is justified to seek treatment at a private hospital,
or all the amount spent was reasonable. Plaintiff must prove that it is reasonable, and the
treatment is necessary.

During the accident, the defendant crashed Alex motorcycle which causing him to fall
and hit his head against a road divider. Despite wearing a safety helmet, Alex suffered severe
injuries to his head. He was taken by a passer-by to Spring Medical Centre, a private hospital
located near the scene of the accident. From this fact, it is not Alex’s decision to be brought
to a private hospital but the passer-by due the urgency of the situation and the severity of
Alex’s head injury, as Spring Medical Centre is the nearest hospital to the location of
accident and a fast decision need to be make because of his severe injury. Considering the
16
[1986] 2MLJ 317
17
[2004] 2 MLJ 465 – CA
7
severe injury that he had, it is reasonable for the passer-by to bring Alex to the private
hospital to for quick medical response. By virtue of the case of both cases, Alex shall be able
to claim the full medical bills of RM 30,000.00 as it is justifiably reasonable for him to have
himself treated at the private hospital.

2.2 Alex’s parents transportation cost to visit him every day at the hospital , RM30
per day.

Generally. transportation cost incurred by plaintiff to hospital or by the victim’s

family members are recoverable, as long as reasonable amount and proved. In the case of
Koh Hak Eng v Nadarajan & Anor 18, it is reasonable for parents to visit their children that
is being treated in the hospital and to be able to produce proof of transaction such as receipt
may enable the plaintiff to claim for this type expenses. In Tay Siew Goh v Tay Tian Soo19,
the court awarded damages for transport expenses of the Plaintiff’s parents and other relatives
to visit her in the hospital. Applying to Alex’s case, his parent’s visits to the hospital may be
claimed with the virtue of both cases mentioned above.

Also, it is mentioned in the facts that RM100 has been spent by Alex for his weekly-
out patient treatment at the private hospital with such amount has been included with the cost
of transportation. Following the case of Yang Salbiah v Jamil Harun20, the court in this case
awarded RM 500 for travelling expenses of the plaintiff herself as out-of-pocket expense
incurred after the accident. Hence, Alex may be able to claim the expenses he spent for going
to weekly out-patient treatment at the hospital. The calculation will be in accordance to the
fact that there is no amount specifically stated separating the amount of initial cost for the
treatment and the cost of transportation to the hospital.

2.3 Alex’s parent spends RM 200.00 on vitamins and herbs which they claimed
helped Alex to regain his strength and his wounds to heal.

18
[1991]
19
[1965] 1 MLJ 21
20
[1981] 1 MLJ 292
8
 In the case of Norizan Abd Rahman v Dr Arthur Samuel21 , the court held that the
claim for extra nourishing food is claimable but, in this case, it is rejected because there is no
receipt. It is trite law that claim for special damages must be proven and the law stands clear
that receipts must be produced as proof of purchase of the nourishing food.

Therefore, Alex’s parent may be able to claim RM 200.00 for the vitamin and herbs, which is
an extra nourishing food to helped Alex regain his strength and his wounds to heal as decided
with virtue of the case of Norizan Abd Rahman v Dr Arthur Samuel22, provided that the
receipt of the product to be produced to the court to make the claim successful. But it will
always be in the court’s discretion to approve such claim of damages.

2.4 Weekly out-patient treatment at the private hospital for three months costs
RM100 each treatment including the cost of transportation where the similar
treatment at a government hospital costs half the amount.

In Mooi Kim Ming v Tang Sia Bak (1988), the court held that it is reasonable for plaintiff
to get a better treatment in private hospital. However, the Supreme Court reduced the medical
cost from RM5,576 to RM1,500 as The Supreme Court ruled that it has the discretion to
award 1/3 of the claim. In Chai Yee Chong v Lew Thai23 it was held that if the plaintiff had
sought treatment at a private hospital, he must prove that he is justified to seek treatment at a
private hospital, or all the amount spent was reasonable. Plaintiff must prove that it is
reasonable, and the treatment is necessary.

As for this case, with virtue of Chai Yee Chong v Lew Thai24 case, an amount may be
claimed as long as the treatment is justifiable to be seek at the private hospital or all the
amount spent was reasonable. Considering that Alex is suffering a severe head injury, the
doctor that giving him the first hand medical treatment is justifiably the most reliable person
to conduct the post-accident treatment to Alex as the doctor knows the condition of the head
and the injuries suffered by him and may need to always be updated with Alex’s head
condition. Though the government hospital provides similar treatment, but the doctor in the
21
[2013]
22
Ibid
23
Ibid at 17
24
Ibid at 17
9
government hospital does not know the severity of the injury had by Alex before and only
may rely to the medical reports transferred to them which giving different perspective of
suitable treatment for Alex to undergo and going to proceed with the treatment for Alex
solely on their theoretical experience, not the first hand experience by the doctor at the Spring
Medical Centre. By that, it is reasonable and justifiable for Alex to undergo weekly out-
patient treatment at the private hospital for three months.

Also, considering that the amount of RM100 per week for the treatment at the private
hospital is including the cost of transportation, it is an affordable price to be offered by a
private hospital for post-accident treatments in regards to the head injury which usually high
risk. It is worth to be reminded that no real price of the weekly-out patient treatment is
provided in the facts. Thus, the calculation will be as below.

Initial price of treatment x 4 weeks = Amount per month

(Amount per month) x 12 weeks =The amount claimable

For the cost of transportation Alex may claimed for it provided that he provides
receipt with virtue of the case of Norizan Abd Rahman v Dr Arthur Samuel25.

2.5 Alex’s parents spent RM 500.00 to repair Alex’s motorcycle that damaged
during the accident and the compensation for the helmet.

Generally, the cost of repair is claimable as in the case of Darbishire v Warren

[1963], Harman LJ held that, “…it has come to be settled that in general the measure of
damage is the cost of repairing the damaged article.” The principles from this case are the
cost must be reasonable and the work must be necessary and the charges not extravagant.
However, the cost of repairs did not cover cost of repairs on damage which already existed at

25
Ibid at 21
10
time of accident. The production of receipt is needed as evidence of the repairs to be able to
successfully claims. The plaintiff also has a duty to mitigate.

Alex may be able to claim for the cost of RM 500.00 for repairing the motorcycle by
virtue of the case of Darbishire v Warren [1963]. Generally, the cost of repair is claimable
as in the case. It is reasonable and necessary for Alex to repair his broken motorcycle caused
by the accident with the defendant. Alex also must provide receipt of the repair for
successfully claiming the damages.

As for the helmet, damage goods are recoverable. If the damaged goods can be
repaired, the value will be determined by the cost of repair, consequential loss & depreciation
in value. However, if there is total loss, a damage that cannot be repair the cost will be
determine by market value.

As in the case, in the accident Alex had hit his head against a road divider and
suffered severe injuries to his head, despite wearing the helmet. The fact that Alex’s head was
badly injured, the helmet must also be in a very bad condition and totally damaged and not
usable. Thus, the damage shall be determined by the market value of a helmet that had been
broken during accident.

2.6 Alex’s disability to paint after the accident which is his source of income due to
his broken arm (earned on an average of RM500/month)

Section 28A(2)(d)(i) of Civil Law Act 1956 provides that in the case of a person who
was of the age of thirty years or below at the time when he was injured, the number of years’
purchase shall be 16. Section 28A(2)(c)(ii) of Civil Law Act 1956, only the amount relating
to his earnings as aforesaid at the time when he was injured and any prospect of the earnings
as aforesaid being increased at some time in the future. In the case of Nazori Teh v Tay Lye
Seng (1995), it was held that the court will take into account the amount the plaintiff was
earning at the time of accident.

11
 As in this case, Alex is at the age of 20 years old and suffered loss of earning due to
his disability to earn money from painting and selling its online , which he earned in average
of RM 500.00 per month by selling it, after the accident because of the broken arm caused by
the accident. Through the formula of computation, Alex may be able to claim RM 96,000.00
for loss of earning capacity from unable to paint because of the broken arm from the accident.
The computation is Multiplicand (earning of RM 500.00 per month) x Multiplier (Age 20
years old, hence fixed at 16). The calculation as below;

= (RM 500 x 12 months) x 16

= RM96,000.00

2.7 Alex unable to attend the management training programme and would not
receive the RM 1,000.00 allowance.

Section 28A(2)(c)(ii) of CLA 1956 stated that only the amount relating to his
earnings as before the accident shall be consider he was injured and not any prospect of the
earnings increased at some time in the future.

In this case, Alex had received an offer to attend one year management training
programme with Pizza Paradise During the year, he would be paid a monthly allowance of
RM1,000.00 and only after the training period he would be paid a monthly a salary of
RM1,500.00 would then increase in the subsequent years. By virtue of Section 28A(2)(c)(ii)
of the Civil Law Act 1956 that the claim for loss of earning only applicable for his current
earning at the time of the cause of action, Alex did accept the offer a day before the accident
but the money he received when he join the program is the allowance and not his earning
salary. Hence, any amount not relating to prospect of earning as in this case the allowance of
RM 1,000.00 is not claimable by virtue of Section 28A(2)(c)(ii) of CLA 1956.

2.9 An insurance company paid him RM3,000 for the medical insurance which his employer
had taken for him to pay for his medical expenses and RM500 RM500 from his
sympathetic colleagues to help him with his medical expenses.

12
 Generally, Section 28A(1)(a) of Civil Law Act stated that any sum paid or payable in
respect of the personal injury under any contract of assurance or insurance shall not
deductible from the total claim. This is supported by the case of Sin Hock Soon Transport
Sdn Bhd v Low King Ban26 that in the assessment of damages, insurance is non-deductible.
Thus, by that, the amount of RM3000 paid by the insurance company to Alex shall not be
deductible from the total claim with virtue of Section 28A(1)(a) of Civil Law Act 11956 and
the case of Sin Hock Soon Transport Sdn Bhd v Low King Ban27.

Section 28A (1)(b) of the Civil Law Act 1956 stated that if the money is given
gratuitously or advanced by a sympathetic employer there shall not be reduction from the
claim by the plaintiff. In the case of Lim Kiat Boon v Lim Sen Kong (1980), it was held that
there shall not be any reduction if the money is given gratuitously or advanced by a
sympathetic employer or colleagues, the defendant should not reap the benefit which was not
mean for him.

In this case, Alex received RM 500.00 from his empathetic colleagues to help him
with his medical expenses. By virtue of Section 28A(1)(b) of the Civil Law Act 1956, the
amount is non-deductible from the claim by plaintiff. Alex may be able to claim the full
amount of RM 30,000.00 for the medical expenses.

26
2 MLJ 39

27
Ibid
13