Lee Chee Kwong

[2016] MLRSU v. Kutiandy Thanniamalay & Anor 1

LEE CHEE KWONG

v.
KUTIANDY THANNIAMALAY & ANOR

Sessions Court, Ipoh

D Sunita Kaur Jessy J
[Summons No: A53KJ-167-05/2015]
1 April 2016

Case(s) referred to:

Sam Wun Hoong v. Kader Ibramshah [1980] 1 MLRA 712; [1981] 1 MLJ 295
(refd)
Yeap Cheng Hock v. Kajima-Taisei Joint Venture [1971] 1 MLRH 257; [1973] 1
MLJ 230 (refd)

Counsel:
For the plaintiff: D Lalitha; M/s Hakimi, Lalitha, Mardhiyah & Associates
For the defendant: Subashini Gunasegran ; M/s VT Singam, D Gunasegran & Co

[Ordered accordingly.]

GROUNDS OF JUDGMENT

D Sunita Kaur Jessy J:

[1] This was a collision between the plaintiff (who was doing some repair work
at the side of the road) and the defendant's lorry [BAG 898] on the 26 August
2013 at about 3.00 pm at Persiaran Batu Gajah Perdana 4, Kawasan
Perindustrian, Taman Batu Gajah Perdana. The defendant moved his lorry
and hit the plaintiff who was doing some repair work at the road side thereby
causing him injuries. Liability was decided at 100% against the defendant and
the plaintiffs' claim for general and special damages was allowed.

[2] The plaintiff lodged an appeal on 9 March 2016 on quantum.

[3] The defendant lodged an appeal on 11 March 2016 on liability.

Plaintiff's Version

[4] The plaintiff's version was that he was instructed to repair a leaked pipe by
the side of the road outside the factory (Perak Rever Sdn Bhd) when the
defendant ran over him causing severe injuries. This accident would not have
occurred had the defendant be more careful and the fault lies entirely on the
defendant.

Defendant's Version

[5] The defendant's version was that he had parked his lorry by the road side
 Lee Chee Kwong
2 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

and had noticed the plaintiff working at the side of the road. He parked his
lorry and went inside the factory for some work. Upon coming out of the
office, he moved his lorry and only realized he hit the plaintiff when he heard
shouts from a Bangladeshi worker at the site. The defendant contends that the
plaintiff was also negligent in this accident.

Findings Of This Court

[6] The investigation officer testified that this accident occurred by the side of
the road outside the factory where the plaintiff worked. This was an industrial
area and the plaintiff was doing repair works on a leaked pipe. Reference to his
notes of evidence:-

"Q-ada kon untuk melarang orang lain masuk ke arah ini?

Tiada. Jenis tempat kemalangan ini adalah kawasan perindustrian.

Q-jadi memang kenderaan berat diletakkan di tepi jalan kilang ini?

Ya.

Q-lori defendan masih di tempat kejadian?

Ya tapi diubah. Gambar E dan F adalah lori yang telah di ubah.

Q-soalan 24- kamu kata dapati pejalan kaki berdiri di tanda D yang
lihat ke arah kilang- dia bukan pejalan kaki tapi pekerja?

Dia pejalan kaki yang bekerja di situ. Dia bukan kerja tetap di luar tapi
dia sedang baiki paip air bocor.

Q-kamu kata dia sedang berdiri dan baiki paip?

Ya.

Q-daripada siasatan mangsa tidak letakkan tanda amaran atau kon

bahawa maklumkan dia sedang lakukan kerja-kerja pembaikan paip?

Ya setuju.

Q-tempat letak lori dan kemalangan 20 meter?

Ya. Tiada halangan pandangan.

The investigation officer merely confirmed what the plaintiff and defendant
subsequently said in court.

[7] The plaintiff confirmed that he saw the defendant park his lorry by the road
side. He then continued his work until the defendant got into his lorry again
and moved. It was only when the lorry was very near to him that he heard the
 Lee Chee Kwong
[2016] MLRSU v. Kutiandy Thanniamalay & Anor 3

sound of the engine and was hit by the lorry. Reference to his evidence:-

"Q-berapa besar tempat yang kamu pecahkan?

Lebih kurang 1 kaki. Ya di tepi jalan. Jarak dari kilang lebih kurang 5
kaki. Lepas itu saya berdiri memeriksa dan masih belum jumpa di
mana paip bocor. Saya sedang berdiri ketika itu. Pekerja seorang lagi
sedang korek sisa longkang. Lebih kurang 15 minit melakukan kerja
ini. Lepas itu saya dilanggar lori dari kiri dan langgar.

Q-adakah kamu lihat lori datang?

Tidak lihat. Bila telah dekat dengan saya baru saya dengar bunyi enjin
lori.

Q-jarak dekat? Kali pertama lihat lori dalam jarak 20 meter. Saya
teruskan dengan kerja. Bila lori telah dekat 2-3 kaki baru saya dengar
bunyi enjin. Saya ada lihat lori parking di tepi kilang sebab driver
ingin pergi ke kilang saya untuk cuci barang di kilang.".

There was no obstruction to the view between the lorry and where the plaintiff
was working. I find that the lorry driver should have exercised some care when
moving his lorry knowing very well that the plaintiff was working by the side
of the road. There was evidence to show that the defendant had parked his
lorry and spoken to the plaintiff before going in the factory. Once his work was
done in the factory, he got onto his lorry to leave the factory premises when
this unfortunate accident took place.

[8] There was also an independent witness present at the time of accident. This
witness was assisting the plaintiff with the repair of the leaked pipe. He clearly
stated what happened on that day:-

"Q-can you remember what happened?

I and Mr Lee were working making a drain at near the road on grass.
Outside of factory. Started working with Mr Lee at 12 noon. I saw a
lorry still far and then it came near to me 5-6 ft. and lorry hit Mr. Lee.
First time saw the lorry around 60 ft far.

Q-after Mr Lee spoke to drover what happened?

Then Mr Lee came back and stared working. Both of us doing same
job at same time. Mr Lee and he took rest and smoking at the same
place. Suddenly saw lorry 4-5 ft near Mr Lee and I waved my hand
shouted and screamed. But lorry driver did not hear. Then I informed
my boss. Sound coming from cement factory.

Q-how come you saw lorry and Mr Lee did not see?

Mr Lee was working and I was standing there. I was standing 3 ft next
 Lee Chee Kwong
4 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

to Mr Lee.".

This witness was able to state with certainty as to how this accident happened.
On the issue of whether plastic cones were put up to warn road users that work
was in progress at the area, this witness confirmed that they had put up
something to warn others of work in progress "Q-did you put up signage or
cone to say that work was being done there? Something we put up standing
like a pillar made of bricks and put it up standing next to work place. No cones
placed there.". Therefore, I find that the defendant should have exercised care
and checked his surroundings before moving his lorry.

[9] The defendant in his evidence confirmed that he knew the plaintiff was
doing some work at the area as he has spoken to him before entering the
factory. He however, did not see the plaintiff working at the scene when he
came out of the factory. He then got onto his lorry and moved and only realize
he had hit something when he felt a sudden obstruction:-

"Q-rujuk laporan polis- kamu tidak lihat orang di depan lori kamu?

Maksud - selepas saya cuci tangan dan naik lori di sebelah kanan saya.
Bila sedang naiki lori, orang Bangladesh berada di dalam company
dan ketika itu tea time. Lori enjin start dan saya tidak lihat orang itu
sedang menggali paip.

Q-berapa lama kamu ambil dari masa bergerak dan langgar?

Sejurus start enjin dan lepas saya bergerak lori ketika itu sedar lori
saya naiki sesuatu dan turun dan saya berhentikan lori serta merta.

Q-rujuk ikatan E-m/s 5 adakah itu lori kamu?

Ya.

Q-cdng- jika kamu pastikan dan periksa jika ada orang kerja di depan
kemalangan dapat dielakkan?

Setuju.".

The defendant had also very clearly narrated what happened during the
accident in his police report. Reference to his police report:-

"pada 26 Ogos 2013 jam lebih kurang 3.00 petang setelah selesai turn
barang dari lori di sebuah kilang Perak Rever Sdn Bhd kawasan
perindustrain Batu Gajah Perdana, saya memandu m/lori treler no
BAG 898 untuk balik Ke Tasek Ipoh, semasa saya mahu jalan, saya
telah terlanggar seorang lelaki Cina yang sedang membuat kerja di
depan m/lori treler saya, pada masa itu saya tidak nampak ada orang
berada di depan m/lori saya. Dalam kemalangan ini saya tidak
mengalami apa-apa kecederaan dan tiada kerosakan pada m/lori treler
saya. Inilah laporan saya.".
 Lee Chee Kwong
[2016] MLRSU v. Kutiandy Thanniamalay & Anor 5

The defendant should have been more careful as he knew of the presence of
the plaintiff who was doing work at the scene. In the case of:-

Chai Phin Chong & Anor v. Zainal Abidin Mohd Salleh & Anor [1998]
2 MLRH 531; [1998] 4 CLJ 833

"The driver of a motor vehicle has a strong duty to keep a

good lookout while driving and the sharpness of the lookout
required depends upon the circumstances existing at that time.
A driver should always anticipate the possible presence of
others on the road and should always be able to stop within
the range of his permitted vision.".

[10] Based on all evidence before this court, I find on a balance of probabilities
the defendant should have exercised care before moving his lorry. This
accident could have been avoided had the defendant checked before moving
his vehicle. Therefore liability was decided wholly against the defendant.

Quantum (On A 100% Basis)

[11] The amount of award given by a court would depend on each case.
Damages for personal injuries are given merely to compensate for the injuries
so that the plaintiff can lead a better life post injury. Cases below were referred
to:-

Ong Ah Long v. Dr S Underwood [1983] 1 MLRA 154; [1983] 2 MLJ

324; [1983] CLJ (Rep) 300

"it must be borne in mind that damages for personal injuries

are not punitive and still less a reward. They are simply
compensation that will give the injured party reparation for
the wrongful act and for all the natural and direct
consequences of the wrongful act, so far as money can
compensate.".

Mariam Mansor v. JD Peter [1975] 1 MLRH 27; [1975] 1 MLJ 279

"in considering what compensation the court shall award, it is

impossible to arrive at an accurate figure, however, all the
court can do is to award her a sum which would compensate
her for pain and suffering she had undergone and will, in all
probability, continue to undergo. I feel that the sum awarded
should be a fair sum to compensate the plaintiff for the injuries
suffered, but it should not be too excessive to constitute an
injustice to the defendant.

It is trite law that any claim for special damages must be specifically pleaded
and strictly proved as opposed to general damages which is subject to
 Lee Chee Kwong
6 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

assessment (See Sam Wun Hoong v. Kader Ibramshah [1980] 1 MLRA 712;
[1981] 1 MLJ 295 at 297, FC). In Yeap Cheng Hock v. Kajima-Taisei Joint
Venture [1971] 1 MLRH 257; [1973] 1 MLJ 230 at 236 Syed Agil Barakbah, J
held:-

"The general principle is that the plaintiff must be prepared to prove

his special damages unless it has been agreed. It is not enough for him
to write down the particulars and leave them for the court to decide. It
is for him to prove them.".

[12] An award is made (on a 100% basis) based on reference to the latest
Compendium on Personal Injury Awards as a guide, submissions by all parties
as well as relevant case laws.

[13] General damages assessed as below:-

(a) Closed fracture superior and inferior pubic rami;

(b) Diasthesis symphisis;

(c) Left sacro-illiac joint displacement;

(d) Sacral vertebrae fracture;

This court made a global award of RM66,000 for all the above
fractures.

The plaintiff sustained injuries to the pelvic region and asked

for separate awards for each fracture. Reference to his medical
reports on this injury was stated as:-

Plaintiff's medical reports:-

Initial medical report from Hospital Batu Gajah (date

of examination was 26 Auguts 2013 at 3.30 pm)
where an x-ray was done and the hospital detected
fracture at the pelvic as such "closed fracture left
superior and inferior pubic rami.". No treatment was
given to the plaintiff as he opted for "AOR (at own
risk) discharge to private hospital".

Medical report from Hospital Pantai (Dr Kew Sai

Chong) dated 20 April 2013- "he has sustained injury
to his pelvic region, abdomen and left chest. ... on
examination, his vital signs were not stable and GCS
15/15. X-ray showed fracture of the ribs and pelvic
bone. He was diagnosed to have- closed left superior
and inferior pubic rami; disathesis symphysis pubis;
left sacroiliac joint displacement; sacral vertebra
fracture; closed fracture left 1st and 5th to 8th ribs;
 Lee Chee Kwong
[2016] MLRSU v. Kutiandy Thanniamalay & Anor 7

bilateral pneumothorax and bilateral lung contusion;

intra-abdominal injury' paroneal nerve injury with
foot drop."

The injuries sustained by the plaintiff were within the

pelvic area. There have been instances where courts
have made separate awards and instances where
global awards are given. Each case will depend on its
own facts before an award is made out. The plaintiff
referred to the case of Cho Chee Cheong v. YB
Setiausaha Kerajaan Negeri Perlis [2014] 5 LNS 45,
whereby separate awards were given out for each
fracture at the pelvic region with a 10% deduction for
overlapping. In that case, the specialist confirmed that
the plaintiff suffered severe disabilities and would be
unable to return to the work force. Each case is
decided based on its own facts.

In the present case, I find that the injuries were closely

within the same pelvic region that that it would only
be just to make one global award. To consider
separate awards would be to unjustly compensate the
plaintiff. This case was referred to:-

Ngooi Ku Siong & Anor v. Aidi Abdullah [1984] 1

MLRA 200; [1985] 1 MLJ 30; [1984] 1 CLJ 294

"we are of the opinion that the fracture and

the other connected injuries should be
assessed together and not separately and then
just added up at the end because they are not
separate heads of compensation.".

The Compendium suggests a maximum figure of

RM66,000 for multiple fractures with disabilities to
the pelvic region and the maximum was given. The
plaintiff here suffered disabilities resulting from the
injuries. The most recent examination of the plaintiff's
condition was done by the defendant's specialist, Dr
Goh Orthopaedic (date of examination 28 August
2015):-

"there was shortening of the left lower limb.

This is due to the pelvis injury and will be
permanent. Comparing to the examination by
Dr Raveendran on 4th July 2014, his
condition has improved. The wasting of
muscles of left thigh and calf now is only 1 cm
each. The ankle movements were now
normal. There was only mild weakness of left
 Lee Chee Kwong
8 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

ankle dorsiflexion. Hence his left foot drop

has improved. The limping gait is due to the
shortening of the left leg. This will be
permanent. Together with the mild weakness
of the left ankle, he has difficulty in running
or jumping. He will not be able to lift heavy
objects, walk for long distance nor prolonged
standing. He should be able to do light duty
and desk jobs.".

This court has taken into consideration also the

current condition of the plaintiff in making a decision
on the award. The very intention of a compensation is
not to be considered as a reward but rather to
compensate the plaintiff for his injuries and losses
suffered. This award of RM66,000 is the maximum as
provided in the Compendium with due consideration
to the plaintiffs disabilities. With this in mind, I am of
the view that one global award would be reasonable.
Reference to the cases below:-

Ng Aik Kian & Anor v. Sia Loh Sia, High Court Johor
Bahru [1997] 1 MLRH 76 [1997] 2 CLJ Supp 218;
[1997] 2 BLJ 218;; [1997] 2 AMR 1996

"Damages for personal injuries are not

punitive and still less a reward. This apart, it
must also be borne in mind that an award
under general damages should be a global
sum commensurate with the injury sustained
and not a full compensation which might
result in ruinous consequences to the
defendant.".

Tan Cheong Poh & Anor v. Teoh Ah Keow [1995] 2

MLRA 379; [1995] 3 MLJ 89; [1996] 3 CLJ 665;
[1995] 3 AMR 2733

"where disabilities stem from one injury, the

extent of overlap will be such that there would
be a merger and hence, allowance for
overlapping in computing the award for pain
and suffering and loss of amenities is not good
enough. In this case, all the disabilities
suffered by the plaintiff stemmed from one
injury, ie the brain damage, and thus, the
judge was right in making a lump sum award
instead of making separate assessments for
physical and intellectual disabilities, and to
allow for overlap thereafter.".
 Lee Chee Kwong
[2016] MLRSU v. Kutiandy Thanniamalay & Anor 9

(e) Closed fracture left 1st rib and 5th to 8th ribs;

(f) Bilateral pneumothorax and bilateral lung contusion;

This court made a global award of RM40,000 for both the

injuries.

The fracture to the left 1st rib and 5th to 8th ribs together with
bilateral pneumothorax and lung contusion are taken together
as it was within the same region. Generally each rib is
calculated between RM3,500 - RM4,500 (as provided for in
the Compendium). The bilateral pneumothorax and lung
contusion was also included and given as one global award as
the injury was within the same region. The calculation works
out at RM20,000 for the fracture to the ribs (at RM4,000 each
rib) and another RM20,000 for the bilateral pneumothorax
and lung contusion. Therefore to calculate separately would
be unreasonable as this global award of RM40,000 is fair for
both the injury. Below are some cases to show the range of
awards given previously:-

Teck Seng Munusamy & Anor v. Supa'at Sarijo & Anor [2012] 1
PIR [10]

RM6,000.00 was awarded for fracture of the right

fourth and fifth ribs (without any disability).

Muhammad Wafi Mahayadin v. Logeswaran Subramaniam & 3

Ors [2011] 2 PIR [79]

RM4,000 was awarded for fracture of the first right

rib. RM10,000.00 was awarded for left pneumothorax
with right lung contusion.

Mohd Fayzul Ahmad & 2 Ors v. Ismail Hamid & Anor [2008] 2
PIR 60

RM16,000 was awarded for right lung contusion

Therefore this award is fair taking into consideration also that

there was no severe disabilities suffered by the plaintiff by this
injury.

(g) Intra-abdominal injury;

(h) Rectal perforation with faecal peritonitis;

 Lee Chee Kwong
10 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

Global award of RM27,000 for both.

The plaintiff suffered severe injury to his abdominal area with

rectal perforation with faecal peritonitis. The plaintiff
proposed a figure of RM100,000 for this injury. Reference
made to the medical report from Thas General Surgery &
Colorectal Surgery:-

"while waiting for the reversal of the sigmoid

colostomy Mr Lee was re-admitted from 14
September 2013 to 20 September 2013 for subacute
intestinal obstruction. This is most likely related to the
peritonitis secondary to the rectal perforation. Mr Lee
improved with conservative management. Me Lee's
sigmoid colostomy was reversed on 26 February 2014.
He recovered uneventfully following the reversal.
During Mr Lee's last clinical review on 10 November
2014 he remained well overall. He continues to have
abdominal colic from time to time. This is most likely
due to adhesions secondary to the faecal peritonitis.".

Based on the above medical report the proposed figure of

RM100,000 by the plaintiff is very high. The medical report
clearly does not show any severe disabilities suffered by the
plaintiff. Reference to the cases below shows the range of
awards given for abdominal injury:-

Mahendran Dr Arasaratnam v. Voon Shiau Teng [2011] 2 PIR

[40] 217

RM20,000.00 was awarded for intra-abdominal

injury.

Samad Hamzah & Anor v. Murugan Subramaniam & Anor

[2011] 2 PIR [48] 249

RM30,000.00 was awarded for intra-abdominal injury

(perforated bowel).

Zaini Hasan (isteri atau balu yang sah mendakwa tuntutan ini
sebagai tanggungan dan benefisiari kepada Ahmad Ismail, si
mati) & 4 Ors v. Thangaraja Sanmugam & Anor [2011] 1 PIR
[67] 273

RM10,000 was awarded for intra-abdominal injury.

Therefore based on the above, this figure of RM27,000 is fair

and reasonable.
 Lee Chee Kwong
[2016] MLRSU v. Kutiandy Thanniamalay & Anor 11

(i) Peroneal nerve injury with foot drop (inclusive of muscle wasting)-
RM10,000;

The plaintiff suffers from foot drop resulting from this injury.
Medical reports have confirmed that this is a permanent
disability. Reference to Dr Raveendran's report (examination
date on 4 July 2014) stated the following:-

".... There was tenderness over the sacrum. Fracture

of the left side of the sacrum noted associated with
adjacent soft tissue ossification.". noted at the end-
"real shortening 1 cm of left leg. There is now mal-
alignment of the left sacro-iliac joint. He is not fit to
do work involving lifting heavy weights, standing for
long, walking long distances or squatting. He is only
fit for light job. The left foot drop is permanent as it is
about one year since his injury. He will also develop
early osteoarthritis of the left hip causing pain and
stiffness. He will need long term medication and
physiotherapy.".

The plaintiff proposed a figure of RM10,000 for foot drop

which is reasonable based on the current trend of awards for
this injury and this amount was given as an award.

(j) Fracture of sacrum- dismissed;

The plaintiff suffered multiple fractures to the pelvic area in

the accident dated 26 August 2013. All the medical and
specialist reports stated fractures to the pelvic region as
follows:-

(1) Closed fracture superior and inferior pubic rami;

(2) Diasthesis symphisis;

(3) Left sacro-illiac joint displacement;

(4) Sacral vertebrae fracture;

However, this fracture to the sacrum was never listed

in any of the medical or specialist report except in Dr
Raveendran's report dated 19 January 2015. His
report stated:-

"inspection - .... there was tenderness over the

sacrum.
 Lee Chee Kwong
12 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

radiological examination showed - "fracture

of the left side of sacrum noted associated
with adjacent soft tissue ossification.

However at - "diagnosis- it was stated that the

patient sustained the following injuries- (1)
Closed fracture superior and inferior pubic
rami; (2) Diasthesis symphisis; (3) Left sacro-
illiac joint displacement; (4) Sacral vertebrae
fracture;.......".

Based on this report alone, it would be unfair to allow this

claim as no evidence was lead further to show if this injury
was sustained as a result of this accident or otherwise.
Furthermore, there was a long gap from the accident (26
August 2013) until when the fracture was noted on 19 January
2015. Therefore this claim was accordingly dismissed.

(k) Fracture of clavicle with shortening and fracture of sternum-

RM27,000;

The plaintiff suffered fracture to the clavicle with shortening

and fracture of the sternum. The plaintiff proposed a figure of
RM20,000 for both. However, since these are two fractures,
this court gave an award of RM27,000 for both the fractures
due to shortening of the clavicle with disabilities. Reference to
the cases below:-

Noraini Jaafar v. Cheong Kon Hee [2008] 2 PIR [62]

RM16,000.00 was awarded for closed fracture

midshaft of the right clavicle with 1 cm
shortening. The fracture had malunited.

Manjeet Singh Sundav Singh v. Muhammad Yusuf

Mahazer & Anor [2011] 2 PIR [7] 25

RM30,000.00 was awarded for fracture of the

left clavicle with permanent disabilities.
Plaintiff in this case suffers with restricted
range of motion of the left clavicle, tender and
deformed clavicle and unable to lift heavy
objects.

Therefore based on the above figure is reasonable and is

within the current range of awards.

(l) Hypovolemic shock- dismissed.

 Lee Chee Kwong
[2016] MLRSU v. Kutiandy Thanniamalay & Anor 13

The plaintiff tendered the medical reports on this by Dr Thas

General Surgery & Colorectal Surgery which stated:-

Plaintiff's specialist report from Hospital Pantai Thas

General Surgery & Colorectal Surgery (date of
admission 26 August 2013 and discharge 6 September
2013):-

"condition upon admission: critically ill. In

hypovolemic shock. Extensive bruising and
heamatoma over the right flank, right femoral
triangle, suprapubic region and the
scrotum.Investigations: bilateral pneumothorax and
bilateral lung contusion and bilateral subcutaneous
emphysema; fractures right calavicle, right
manubrium sterni, right first rib, left first and 5th to
8th ribs; left pelvic fractures with intraperitoneal left
iliac contusion and extensive superficial soft tissue
injuries; posterior displacement of sacral vertebral
fracture; free peritoneal gas suggesting bowel injury
(rectal perforation-with peritonitis); CT brain- no
intracranial injuries.".

Report dated 21 December 2013 - "critically ill. In

hypovolemic shock. .... ICU admission, blood
transfusion, bilateral intercostals drainage via
intercostals drains. IV drip, IV antibiotics, analgesics
and other supportive measures. Laparotomy,
peritoneal toileting and defunctioning sigmoid
colostomy.".

Report dated 11 March 2015 - "he was in

hypovolemic shock and life was in imminent danger.
Unmatched blood was transfused as a life-saving
measure.

It is undeniable that the plaintiff suffered from hypovolemic

shock resulting from the abdominal injury. However,
'hypovolemic shock' refers to a medical or an emergency
condition suffered by a person due to loss of blood. Although
it is a life threatening condition but it occurred as a result of
the abdominal injury. Reference to:-

Dorlands Medical Dictionary on this: "hypovolemia-

abnormally decreased volume of circulating blood in
the body (hypovolemic).".

This emergency condition cannot amount to an injury so as to

justify an award therefore this claim was dismissed
 Lee Chee Kwong
14 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

accordingly.

(m) Scars- RM6,000.

There was no submissions by the plaintiff on this. However,

based on the medical reports, the plaintiff suffered scars
resulting from injuries in this accident. The defendant
proposed a figure of RM6,000 for scars and I find this to be a
reasonable figure.

[14] Special damages assessed as follows:-

Item (a) loss of earnings- RM8,050 (for the period of medical leave);

The plaintiff suffered injuries resulting from this accident and

he was unable to work for 7 months. The medical leave was
produced in court as exhibits. The plaintiff worked prior to the
accident as a supervisor in a factory. His average monthly
income was calculated based on the 3 salary slips produced in
court at RM1,150. The medical leave were marked as exhibits
and this court allowed the loss of earnings of RM8,050 with
the calculation as follows:-

RM1,150 x 7 months = RM8,050.

The plaintiff's claim for full loss of earnings was disallowed for
the very reason that the specialist reports does not support
this. The plaintiffs' own specialist (Dr Raveendran) stated that
"... he is only fit for light job..." but nowhere does it state that
he is unfit to return to work. The defendants' specialist being
the most recent (Dr Goh Orthopaedic (date of examination 28
August 2015)- "there was shortening of the left lower limb.
This is due to the pelvis injury and will be permanent.
Comparing to the examination by Dr Raveendran on 4th July
2014, his condition has improved. The wasting of muscles of
left thigh and calf now is only 1 cm each. The ankle
movements were now normal. There was only mild weakness
of left ankle dorsiflexion. Hence his left foot drop has
improved. The limping gait is due to the shortening of the left
leg. This will be permanent. Together with the mild weakness
of the left ankle, he has difficulty in running or jumping. He
will not be able to lift heavy objects, walk for long distance nor
prolonged standing. He should be able to do light duty and
desk jobs.".

Therefore based on the above specialist reports, this claim for

full loss of earnings is unreasonable. The plaintiff must
mitigate his own losses. To give full loss of earnings would
unjustly enrich the plaintiff. Reference made to the case of Ng
 Lee Chee Kwong
[2016] MLRSU v. Kutiandy Thanniamalay & Anor 15

Aik Kian & Anor v. Sia Loh Sia, High Court Johor Bahru
[1997] 1 MLRH 76 [1997] 2 CLJ Supp 218; [1997] 2 BLJ 218;;
[1997] 2 AMR 1996 "Damages for personal injuries are not
punitive and still less a reward. This apart, it must also be
borne in mind that an award under general damages should be
a global sum commensurate with the injury sustained and not
a full compensation which might result in ruinous
consequences to the defendant.".

Item (b) nursing care- dismissed;

The plaintiff is also claiming for the cost of nursing care in the
amount of RM1,200 monthly for 6 months. However, there
was no evidence to support this claim. Nothing in the
evidence before this court to justify the figure of RM1,200
month for cost of nursing care. Therefore this is was
dismissed.

Item (c) damage to clothing's- dismissed;

Damage to clothing was not proven therefore this claim was

dismissed.

Item (d) cost of family visits to Hospital- RM1,000;

This claim for family visits was not proven, however I find
that the RM1,000 proposed by the defendant is reasonable and
therefore allowed.

Item (e) medical expenses- agreed between parties at RM15,541.64

after 1/3 deductions from the initial amount of RM46,624.91;

Item (f) cost of documents- under solicitor's cost;

Item (g) cost of medication and pharmacy bills- agreed at RM1,896.80;

Item (h) cost of bed and mattress- agreed at RM1,250;

Item (i) cost of ambulance- agreed at RM1,300;

Item (j) cost of follow-up visits to Hospital- from the amount of

RM2,424.30 parties agreed to 1/3 (RM800).

[15] Other items- dismissed.

[16] The awards made out to the plaintiff here is a fair and a justified figure as
the very true meaning of compensation as a result of an injury is to
compensate a person not only for the pain and suffering but also for the
difficulties or disabilities which he now has to endure. The amount of money
 Lee Chee Kwong
16 v. Kutiandy Thanniamalay & Anor [2016] MLRSU

given out as compensation would entirely depend on the facts of each case.
Case laws and the Compendium are taken as a guide for the amount of award
to be given. I now refer to this case which had very clearly given the meaning
of compensation:-

Mariam Mansor v. JD Peter [1975] 1 MLRH 27; [1975] 1 MLJ 279

"in considering what compensation the court shall award, it is

impossible to arrive at an accurate figure, however, all the
court can do is to award her a sum which would compensate
her for pain and suffering she had undergone and will, in all
probability, continue to undergo. I feel that the sum awarded
should be a fair sum to compensate the plaintiff for the injuries
suffered, but it should not be too excessive to constitute an
injustice to the defendant. ...".

Therefore in view of this, award given is not and cannot be an accurate figure
but would definitely compensate the plaintiff for the injuries which he suffered
and the difficulties which he has to endure.

Cost to the plaintiff and interests on special damages run with 2.5% interest
per annum from the date of accident to the date of judgment, general damages
with 5% interest per annum from the date of the summons was served until
date of judgment and 5% per annum on total judgment sum from the date of
judgment until date of full settlement.