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IN THE HIGH COURT IN MALAYA AT IPOH

IN THE STATE OF PERAK DARUL RIDZUAN
[CIVIL APPEAL NO.: AA-12B-15-06/2020]

BETWEEN

1. SITI ZALEHA BINTI AB HAMID

(NRIC NO. : 790208-08-5808)
(mendakwa sebagai ibu yang sah dan wakil orang
tanggungan atas,
MOHAMAD AMAR HAKIMIE BIN MOHAMAD FUAD)
(NRIC NO.: 000629-08-0491)

2. AYU NADIRAH BINTI ABDULLAH

(NRIC NO.: 981219-08-5178) … APPELLANTS

AND

1. MOHAMAD NAZIR BIN ISMAIL

(NRIC NO.: 571211-08-5227)

2. KRISHNAN A/L B MUNUSAMY

(NRIC NO.: 551207-08-6501)

3. MALAYSIAN MOTOR INSURANCE POOL

(yang diuruskan oleh MMIP Services Sdn Bhd)
[COMPANY NO.: 727804-H] … RESPONDENTS

(In the Sessions Court in Ipoh)

In the State of Perak Darul Ridzuan, Malaysia
Suit no.: AA-A53KJ-401-10/2017

BETWEEN

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1. SITI ZALEHA BINTI AB HAMID (NO. K/P: 790208-08-

5808)
(mendakwa sebagai ibu yang sah dan wakil orang
tanggungan atas,
MOHAMAD AMAR HAKIMIE BIN MOHAMAD FUAD)
(NO. K/P: 000629-08-0491)

2. AYU NADIRAH BINTI ABDULLAH

(NO. K/P: 981219-08-5178) … PLAINTIFFS

AND

1. MOHAMAD NAZIR BIN ISMAIL (No. K/P: 571211-08-5227)

2. KRISHNAN A/L B MUNUSAMY (NO. K/P: 551207-08-6501)

3. MALAYSIAN MOTOR INSURANCE POOL (yang diuruskan

oleh MMIP Services Sdn Bhd)
[No. Syarikat : 727804-H] … DEFENDANTS

JUDGMENT

Introduction

[1] A tragic road accident on 24 March 2016 caused a 15-year-old

boy to be unable to carry out even basic movements to live. His
lifespan was shortened and he requires life-long care.

[2] At the time of the accident, he was ferrying his sister home from
work on a motorcycle. He had no riding and motor licenses as
well as no motor insurance policy.

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Claim

[3] His sister and he claimed against the driver and the owner of the
motor van who had turned right along his right of way without
sufficient notice causing him to brake hard. It was, however,
insufficient to stop him from colliding with the motor van. He
suffered horrific injuries, whereas his sister suffered minor
injuries.

[4] Their action was on the ground that the motor van in the
collision was registered under WDB 8532 (“WDB 8532”).

Parties

[5] The boy suing through his mother was the first plaintiff and his
sister the second plaintiff. The motorcycle they were riding
carry the registration number AEB 8725 (“AEB 8725”).

[6] The first defendant was the driver of the motor van which
collided with the boy on AEB 8725.

[7] The owner of the motor van WDB 8532 was the second
defendant.

[8] The third defendant was the insurance company which insured
WDB 8532 at the time of the accident. It had successfully
applied to intervene and was added as a party to the action as its
insurance policy on WDB 8532 was at risk.

[9] The claim by the plaintiffs and in particular that of the first
plaintiff ran into millions of ringgits, RM10,348,991, to be
exact, for inter alia, his life-long nursing care.

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Counterclaim

[10] The third defendant counterclaimed against the plaintiffs and the
first defendant on grounds of fraud.

[11] It pleaded that the accident was not with WDB 8532 but another
motor van with registration number AAT 8623 (“AAT 8623”).
And, that the plaintiffs had colluded with the first defendant to
assert it was WDB 8532 that collided with the first plaintiff.

[12] At the time of the accident, WDB 8532 was insured but AAT
8623 was not.

Outcome of claim and counterclaim

[13] At the Sessions Court, the plaintiffs lost. Their action was
dismissed with costs.

[14] The third defendant’s counterclaim for a declaration that the

vehicle number WDB 8532 was not involved in the accident and
that the notice issued under section 96 of the Road Transport
Act 1987 against it is a nullity was allowed. Although its
counterclaim for general, exemplary and punitive damages was
dismissed, the third defendant did not appeal.

Appeal to High Court

[15] Instead, the plaintiffs appealed and these are the grounds of
judgment on their appeal.

Core Issue

[16] Was it motor van WDB 8532 which collided with AEB 8725?

Summary of Sessions Court’s Findings

[17] After 14 days of trial conducted over a period of two years with
the plaintiffs calling 14 witnesses, the first and second

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defendants calling three witnesses and the third defendant

calling nine witnesses and after multiple written submissions
filed, the learned Sessions Court Judge (“learned SCJ”) in her
grounds of judgment (Enclosure, pp 1 - 29 of Additional Record
of Appeal) found that:

i) WDB 8532 was not involved in the accident;

ii) the evidence of the two main witnesses of the

plaintiffs who testified that the collision was between
AEB 8725 and WDB 8532, namely PW1 and PW2
was not credible – PW1 being the first police
Investigating Officer and PW2 being the second
plaintiff who was the pillion rider on AEB 8725 and
sister of the first plaintiff;

iii) that AAT 8623 was the vehicle which collided with
AEB 8725 but was switched to WDB 8532 as AAT
8623’s insurance policy had expired on 8 January
2016 and therefore had no insurance coverage at the
time of the accident (on 24 March 2016); and

iv) fraud had been proven as against the plaintiffs and

the first defendant who had during the course of the
trial admitted that he was driving AAT 8623 at the
time of the accident.

Submissions at the High Court

[18] The English version of the Memorandum of Appeal (Enclosure

16, pp 107 to 194) comprises 87 pages with 65 paragraphs and
numerous sub- paragraphs and is akin to written submissions.

[19] The team of lawyers for the plaintiffs headed by their learned
lead counsel, Mdm. Sharon Sidhu left no stones unturned in

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their submissions both written (Enclosures 36, 47, 48, 49 and

57) and during oral submissions presented over four days on 13
September 2021, 21 September 2021, 7 October 2021 and 12
January 2022 seeking to have the learned SCJ’s findings and
judgment overturned.

[20] It was rather challenging to read the lengthy submissions

running into about 1500 pages with 92 authorities (Enclosures
37, 38 and 39) cited and presented by the plaintiffs.

[21] It was no less challenging to peruse the written submissions

(Enclosures 30 and 43) presented by the lawyers for the first and
second defendants led by Mr. Kenneth George Williams running
into 262 pages (including both the English and Bahasa Malaysia
versions) accompanied by 23 authorities (Enclosures 31 and 44).

[22] The Court is grateful for the more pointed form of submissions
presented by the lawyers for the third defendant (Enclosures 40,
45, 51 and 53) comprising 114 pages led by Mr. Raam Kumar
which were supported by 46 authorities (Enclosures 41, 46, 52,
54, 55 and 56). He concentrated on the liability aspect, content
to adopt the submissions on quantum presented by learned
counsel for the first and second defendants.

[23] Pursuant to section 15A of the Courts of Judicature Act 1964

(Revised 1972) (Act 91), I heard oral submissions relying on
remote communication technology via the Zoom platform.

Positions Taken by Respective Parties

[24] Without meaning any discourtesy to all the learned counsel and
their respective juniors who have undoubtedly worked very hard
in marshalling the facts and the law in the course of putting up
their comprehensive written submissions and in both the
preparation and presentation of the oral submissions, I do not
intend to set out in this judgment what has been presented.

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[25] This is because just the very first set of primary submissions put
up by learned counsel for the plaintiffs runs into 500 pages with
the evidence led during trial and quotations from the case
authorities relied upon, set out in great detail.

[26] Nevertheless, all the submissions have indeed been read and
considered and in the event of any appeal, I am sure the
submissions will be reproduced by learned counsel for the
consideration of the Court of Appeal in due course.

[27] Thus, in my considered view, there is no necessity to add to the

length of this judgment by reproducing the same save to address
several key issues which I will now set out to do.

Court’s Analysis and Findings

Conflict of Interest

[28] The third defendant had retained the law firm of M/s Kenneth
William & Associates to act for the first and second defendants
because its insurance policy on WDB 8532 was at risk.

[29] However, when it intervened in the action and was named as the
third defendant, it counterclaimed against not only the plaintiffs
on grounds of fraud, but also on the ground that the plaintiffs
have colluded with the first defendant to cheat the third
defendant (Enclosure 17 AR Vol 3H, p 229 para 15 iii).

[30] Thus, learned counsel for the plaintiffs took the point (Enclosure
36 para 12, pp 237 to 251) that there was an obvious conflict of
interest as the paymaster, to wit, the third defendant, is
effectively running its fraud action against, inter alia, a party
whom it is defending, namely, the first defendant.

[31] At first blush, I found this to be a meritorious point as justice

must not only be done but must be seen to be done with counsel

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to maintain an independent and objective position at all times in

the administration of justice.

[32] More so, after taking into account the evidence in totality
including the evidence that were not led, for example, the
second defendant and the first adjuster not being produced as
witnesses, the non-production of the reports of the first and
second adjusters, some of the recorded statements under section
112 of the Criminal Procedure Code but I wish to make it
clear that I make no findings whether these adjusters’ reports are
protected from disclosure by reason of legal professional
privilege. In this regard, on the authority of Govinaraju
Nagarajan v. Pacific & Orient Insurance Co Bhd [2014] 1 CLJ
1076; [2014] 8 MLJ 839 (HC) relied upon by the first and
second defendants, S. Nantha Balan JC (now JCA) did point out
at paragraph [75] that the solicitors for the defendant would find
themselves in an awkward position as they could not possibly be
advancing a case which would promote the fraud and collusion
theory against their own client, the defendant.

[33] What the solicitors did in Pacific & Orient Insurance Co Bhd v.
Rasip Hamsudi & Ors [2017] 4 CLJ 572; [2017] 2 MLJRA 659
(CA), that is, to have themselves discharged once the insurance
company had intervened, sounds compelling.

[34] My concern on the conflict of interest point stems from the fact
that, from the comprehensive submissions put up by the
solicitors for first and second defendants, in particular on the
investigations carried out by the first Investigating Officer
(PW1) and that of ASP Zarinah binti Muhammed (DW4)
(Enclosure 30, pp 119 to 127), as well as the investigations of
ASP Chandrasegaran a/l Egamparam (DW5) and the
investigating officer who took over from PW1, Inspector Jaya
Ganesh a/l Balakrishnan (DW6) (Enclosure 30, pp 130 to 133),

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the sting of their evidence would promote the fraud and

collusion theory of the insurance company.

[35] The defendants asserted that the conflict of interest point was
taken up too late in the day at the appellate level. They asserted
that the plaintiffs could have and ought to have taken it up when
the third defendant’s position was made clear in its defence and
counterclaim. However, as to when the complaint is taken does
not assist to resolve this issue because the conflict arises by
reason of the solicitors being funded by the same party, namely,
the insurance company.

[36] However, after giving it due consideration, with the first

defendant earning RM30 a day or about RM1,000 a month
selling nasi lemak, sufficient only to pay for the bare necessities
to sustain his household; and whilst it may sound good to have
independent representations, free from the influence of the third
defendant, the insurance company, it will be practically well-
nigh impossible for the first defendant to fund his own
litigation.

[37] Wherefore, much as I find the conflict of interest point well

taken, it would be better to be represented by another solicitor
rather than not at all and I would decline to order a re-trial
which this Court is empowered to do pursuant to section 29
read together with section 60(1) of the Courts of Judicature
Act 1964 as it is highly likely that the parties will most probably
find the litigation funded by the third defendant, yet again.

[38] On this note, this Court takes comfort that advocates and
solicitors are members of an honourable profession and the
benefit of doubt ought to be given to them that they will
honorably manage what S. Nantha Balan JC (now JCA) had
described in Govinaraju Nagarajan v. Pacific & Orient
Insurance Co Bhd (supra) as an ‘awkward situation’ with their

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primary duty being to the Court’; see also Nivesh Nair Mohan v.
Dato’ Abdul Razak Musa, Pengerusi Lembaga Pencegahan
Jenayah & Ors [2021] 8 CLJ 163; [2021] 5 MLJ 320 (FC) at
paragraph [36] where the Tun Tengku Maimun CJ said:

“[36] We pause for a moment here to note that our case

law is replete with reminders to advocates – whether from
the Bar or public service – of the onerous duties of those
in the legal profession. The highest duty of counsel – a
duty which supersedes his or her duty to his client – is his
duty to the Court, which remains paramount in the
administration of justice. Counsel are expected to make
out their client’s case to the best of their abilities but they
cannot adopt the mindset that they must ‘win at all costs’
if that results in misleading the Court or approbating and
reprobating before different panels of the Court. ”
(Emphasis added)

[39] Before leaving this point, I would urge the Bar Council, the
legal practitioners in personal injury cases as well as other
stakeholders such as the motor insurance companies to
undertake a study on how such similar awkward situations can
be better managed, at least, perception wise, in the
administration of justice.

Pleading Point

[40] The plaintiffs submit that the first and second defendants had
merely denied being involved in the accident. Therefore, they
cannot run an affirmative case to assert that the motor van
involved was AAT 8623, with reliance placed upon the
authorities of, inter alia, Gerard Jude Timothy Pereira v. Kasi
a/l KL Palaniappan [2017] MLJU 925 at para [25], [26], [27]

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and [30] (CA), Analabs Resources Berhad & Anor v. Khor Swe
Foo [2019] MLJU 1505 at para [22] (HC).

[41] Further, the first defendant had occasion to admit in two police
reports lodged by him saying he was driving WDB 8532. And,
his later retraction to the effect that he was influenced by an
adjuster (DW12), whom he thought was a lawyer, to retract and
to lodge two other police reports saying he was driving AAT
8623 cannot be considered premised upon this rule.

[42] The plaintiffs submitted that the learned SCJ erred in not
adhering to this rule.

[43] In my considered view, this assertion would be well and good if

there was only the defence of the first and second defendants.
However, the third defendant had intervened and had expressly
pleaded that the accident on that fateful day was with AAT 8623
and not WDB 8532.

[44] In a civil case, one party’s evidence is the other’s as well, see S
Ashok Kandiah v. Dato’ Yalumallai Muthusamy [2011] 1 CLJ
460 (CA).

[45] In my considered view, being able to rely on another party’s

evidence is settled. In Tan Kim Khuan v. Tan Kee Kiat (M) Sdn
Bhd [1998] 1 CLJ Supp 147 (HC) Augustine Paul JC held that a
party can discharge the evidential burden cast on him by way of
“cross-examination of witnesses of the party on whom the
burden of proof lies or by calling witnesses or by giving
evidence himself or by a combination of the different methods. ”
This was quoted with approval in Ho Hup Construction
Company Bhd v. Woo Thin Choy [2015] 9 CLJ 706 (CA).

[46] It follows that the evidence led by the third defendant can be
relied upon to substantiate the position taken by the first and

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second defendants who denied that the accident was with WDB
8532.

[47] Wherefore, the first and second defendants would still have
succeeded on the premise that the plaintiffs have failed to prove
on a balance of probabilities that the accident was between AEB
8725 and WDB 8532.

[48] The plaintiffs sought to separate the first and second defendants
on the one part and the third defendant on the other. In my view,
the plaintiffs cannot do so because it would lead to an
incongruous situation as there was only one accident on that
fateful day.

[49] Such a separation can be done if the first defendant had

unequivocally admitted that he was driving WDB 8532 at the
time of the accident. A judgment can be given in favour of a
defendant who had admitted but not against other defendants
who did not, see Michael Anthoney v. Krisnan Kali & Ors
[2020] 1 LNS 1606 (HC) (a decision affirmed by the Court of
Appeal).

[50] However, in the course of the trial, evidence was led to prove
that the first defendant lodged two other police reports and
affirmed a statutory declaration saying he was driving AAT
8623 at the time of the fateful accident and under cross-
examination, he admitted that he was asked to say that he was
driving WDB 8532 by the first Investigating Officer (PW1).
Clearly, his admission was not unequivocal.

[51] In the circumstances, with respect, I find that the pleading point
advanced by the plaintiffs to be without merit.

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Core Issue

[52] The plaintiffs’ pleaded case is that the first defendant was
driving WDB 8532 when the collision with AEB 8725 took
place.

[53] The plea is very specific that the collision was with the first
defendant driving WDB 8532.

[54] In the main, the plaintiffs relied on the evidence led through the
Investigating Officer (PW1) as well the second plaintiff (PW2).
The other main pieces of evidence relied upon were the oral
testimony of the first defendant, the first and third police reports
of the first defendant (exhibits D43 and D45) where he said he
was driving WDB 8532 at the time of the collision; the
photographs of WDB 8532 showing there was a dent on the left
front door with broken pieces of the front left window glass and
the two sketch plans, the second of which sketch plan was to add
the presence of a side lane on the left before the junction where
the accident occurred.

[55] The first defendant had lodged two other police reports saying
that he was driving AAT 8623 at the time of the accident.

[56] During cross-examination by learned counsel for the third

defendant, the first defendant (DW2) said that he was asked by
PW1 to say he was driving WDB 8532 instead of AAT 8623.
This can be seen in the notes of evidence which are reproduced
below:

“Asmadi (counsel for the First Plaintiff): So setuju tak

saya cadangkan kepada En Nazir (First Defendant DW2),
En Nazir ada bagi keterangan kepada Sarjan Kudus, tak
apa soalan tu, so, dalam keterangan tersebut En Nazir ada
kata En Nazir terlibat dalam kemalangan melibatkan
kenderaan nombor WDB 8532.

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Saksi (First Defendant DW2) : Itu tidak betul, dia yang

buat nombor itu kenderaan itu. (See RR Jilid 1 (E) muka
surat 1174)

Raam (counsel for the Third Defendant): Pada masa itu En

Nazir gunakan kenderaan apa?

Saksi (First Defendant DW2): Kenderaan itulah AAT lah.

(RR Jilid 1 (F) ms 1310)

Raam: Apa nombor kenderaan tersebut? Saksi: AAT 8623.

(RR Jilid 1 (F) ms 1310)

Raam: Adakah anda memandu kenderaan WDB 8532

pada masa kemalangan iaitu pada 26.3.2016.

Saksi: Tak ada. (RR Jilid 1 (F) ms 1310)

Raam: Adakah Encik (Nazir) kenal Sarjan Kudus? Saksi:

Kenal.

Raam: Apa peranan dia dengan Encik dalam kes ini?

Saksi: Dia nak menukarkan van itu lah. (RR 1 Jilid 1(E)
ms 1212-1213.)

Raam: Tak payah takut apa apa ya kenapa Sarjan

Kudus suruh Encik tukar kenderaan van?

Saksi: Sebab van itu tak ada road tax. (RR 1 Jilid 1(E) ms
1212-1213.)

Raam: Van apa yang tak ada road tax?

Saksi: Van AAT tu tak ada road tax dan insurans. (RR 1
Jilid 1(E) ms 1212- 1213.

Raam: So kenapa Encik setuju untuk tukar?

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Saksi: Dia (Sarjan Kudus PW1) yang buat laporan begitu,

suruh buat. (RR 1 Jilid 1(E) ms 1212-1213.”

[57] Over and on top of the above evidence against the Investigating
Officer (PW1), the son of the first defendant by the name of
Mohamad Kamal Arifin bin Mohamad Nazir (DW3) testified that
at the material time, it was AAT 8623 which was in their house
with its front left door badly damaged and the glass [window]
shattered. DW3 stays with his father (DW3). He testified that his
father told him that the damage to AAT 8623 was caused by the
accident on 24 March 2016 (see Notes of Evidence RR Jilid 1
[E] p 1266) and that he had not seen his father using WDB 8532.
A fair inference to be drawn here is that it is improbable that a
father would lie to his son and therefore, the testimony of DW3
ought to be given much weight.

[58] The evidence of Ayu Nadirah (PW2), the sister of the first
plaintiff and the pillion rider that fateful rainy day that she saw
WDB 8532 at the time of the accident and on another occasion, a
week after the accident enroute to giving her employer a medical
certificate at the Caltex petrol station, her place of work, not far
from where the accident took place, did not inspire confidence
on her credibility.

[59] Two other independent witnesses (DW8 and DW9) who are
officers of the Civil Defence Force (“Jabatan Pertahanan
Awam”) who went to the scene of the accident to render
assistance gave evidence that they saw another vehicle with
descriptions that did not match WDB 8532. Instead, this other
vehicle, carried implements such as a water container, trading
umbrella and things including cups (see the grounds of judgment
of the learned SCJ at Enclosure 29 para 21). A fair inference can
be drawn that the first defendant was driving this motor van at
the time of the accident and this particular motor van would tie
in with the first defendant’s trade, that of a nasi lemak seller.

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[60] PW1 was later subjected to disciplinary proceedings for the

investigations that he had carried out on this road accident.
Evidence on the disciplinary proceedings were led through ASP
Zarinah binti Muhammad (DW4) who was the Assistant Director
of the Legal and Investigations Department. And at the time of
the trial, he (PW1) was awaiting to be sentenced for his
misconduct in the role played by him in the investigations on the
fateful road accident on 24 March 2016.

[61] The Court thanks learned counsel for all the parties for their
detailed analysis of the evidence given. Having reviewed the
evidence in its totality, the detailed submissions presented and
the grounds of judgment of the Sessions Court, I am of the view
that the role played by PW1 is indeed troubling and the
inference that he had arranged for the first defendant to say that
he was driving WDB 8532 instead of AAT 8623 is a fair
inference to be drawn.

Other Grounds of Appeal

[62] Save for the above, with respect to learned counsel for the
plaintiffs, I find that the analysis of the evidence led at trial
contained in the submissions presented by learned counsel for
the third defendant (Enclosure 51) on the issue of liability have
rebutted the plaintiffs’ grounds of appeal well and I accept the
same save for the obvious typographical errors, such as, it was
the first respondent (first defendant) who drove AAT 8623 and
not the second respondent (second defendant), typographical
error on the registration number of motor vehicle AAT 8623 and
that the second adjuster, PW12 was “not” a police officer.

[63] The other point highlighted by the plaintiffs, and which is well
taken, is that there was evidence to prove that the first and
second defendants know each other contrary to the third

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defendant’s submissions that they are strangers to each other.

There was indeed evidence to show that the second defendant
had lent WDB 8532 to the first defendant. However, with I
having agreed with the learned SCJ that the first defendant was
in fact driving AAT 8623 at the time of the accident, I find that
this point is insufficient to warrant appellate interference with
the learned SCJ’s judgment.

Quantum

[64] On the issue of quantum, premised upon the grounds of

judgment put up by the learned SCJ , with respect, this Court is
of the considered opinion that the learned SCJ had correctly
directed herself on the principles in assessment of damages with
reliance placed upon the Federal Court authorities of Inas
Faiqah Mohd Helmi (a child suing through her father and next
friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors,
[2016] 1 PIR [16]; [2016] 2 CLJ 885; [2016] 2 AMR 217; [2016]
1 PIR [16] and Wong Li Fatt William (an infant) v. Haidawati
Bolhen & Anor [1994] 1 LNS 196; [1994] 2 MLJ 497 that an
award of damages is to act as proper compensation for the injury
suffered and loss sustained, it is not to serve as a reward and in
assessing damages, the courts should not be motivated by
sympathy.

[65] Nine medical reports on the first plaintiff were produced.

[66] The learned SCJ made the following awards:

A. First Plaintiff - General Damages

i) Severe head injury – RM380,000;

ii) Loss of consciousness – RM5,000;

iii) Multiple injury to facial bone – RM40,000;

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iv) Left first rib fracture – RM5,000;

v) Right first rib fracture with left hemopneumothorax–

RM7,000;

vi) Fracture of left inferior pubic rami – RM14,000;

vii) Closed fracture distal end right radius – RM15,000;

viii) Closed fracture mid shaft right femur – RM25,000;

ix) Abrasion wound over the left shoulder – RM2,000;

x) Laceration wound over chin – RM3,000;

xi) Multiple scars – RM10,000

B. First Plaintiff - Special Damages

i) Premised on a lifespan of 73.3 years for men as

suggested by the Statistics Department less 30% for
contingencies, the learned SCJ awarded nursing care
for all his needs at RM800 a month with a multiplier
of 40.11 years – RM385,056; and

ii) Medical reports – RM3,591;

C. Second Plaintiff- General Damages

i) Loss of consciousness – RM5,000;

ii) Laceration wound over inner lower lip – RM1,000;

and

iii) Soft tissue injury in the form of bruises on right foot

and left elbow – RM1,500.

D. Interest

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Interest was awarded at 5% per annum on the general

damages from the date of service of writ until the date of
judgment, at 2.5% per annum on the special damages from
the date of the accident (24 March 2016) until the date of
judgment with interest at 5% per annum on the judgment
debt from the date of judgment until full settlement.

[67] The Plaintiffs put up comprehensive submissions on quantum

seeking an amount of RM10,348,991 (Enclosure 36, pp 426 to
497) with the bulk of it in the sum of RM7,516,800 being for
costs of future nursing care, RM208,800 for diapers, RM
835,200 for Abbot Ensure milk and RM835,200 for
physiotherapy treatment.

[68] During the hearing of the appeal, learned counsel, Mdm.

Surinder Kaur, presented the oral submissions on damages for
the plaintiffs. She referred to the plaintiffs’ summary (Enclosure
50) and submitted that the claim for general damages were under
five heads of injuries namely: i) multiple facial bone fractures,
ii) fracture of the left inferior pubic rami, iii) close fracture of
the distal right radius, iv) close fracture of the mid- shaft right
femur and v) multiple scars.

[69] Mdm. Surinder asserted that for item i) it should be increased to

RM100,000 from RM40,000, for item ii) she asserted it should
be RM18,000 instead of RM14,000, for item iii) she asserted it
ought to be RM20,000 instead of RM15,000, for item iv) she
asserted it ought to be RM40,000 as per the medical report
presented by them but the learned SCJ had awarded only
RM25,000 and as for item v) she submitted that a fair sum ought
to be RM35,000 instead of the RM10,000 that was awarded.

[70] Learned counsel for the third defendant with whom learned
counsel for the first and second defendants concurred, pointed
out that the learned SCJ’s awards under these five heads were

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within the range of the Compendium which I understood to be

the Compendium of Personal Injury Awards (Revised as at 26
October 2010) and with respect, in my considered view, as the
awards proposed by the learned SCJ’s come with the suggested
ranges, I find that there is no compelling reason to disturb the
same.

[71] In respect of the claim for loss of marriage prospects, learned

counsel for the third defendant had initially opposed it on the
ground that is a special damage claim and ought to have been
pleaded but it was not and therefore should be rejected. After
doing further research, he referred to the authorities of Khoo See
Moi v. Tay Teik Chang [1970] 2 MLJ 249 (HC) at 252 para G,
and Kalaivanan A/L Sundarajoo & Anor v. Poo Cheng Hock
[2017] 9 MLJ 806 (HC) which expressly discussed loss of
marriage prospects. He also referred to the Federal Court
authority of Ngooi Ku Siong & Anor v. Aidi Abdullah [1984] 1
CLJ Rep 294, [1985] 1 MLJ 30 and although he conceded that
loss of marriage prospects is a claim that falls under general
damages, he asserted it has to be proved with evidence, failing
which, it is speculative and ought to be rejected.

[72] I would add that in Ngooi Ku Siong (supra) the Federal Court
laid down the following test on how to distinguish between
general and special damages:

“General and Special Damages Distinguished.

General damages refer to the damage which the law

“implies in wrongs actionable per se” and is averred in
general terms in the pleadings without the necessity of
quantifying the amount. They include future loss of
earnings as well as damages for pain and suffering and
loss of amenities. They relate to items of damage whether
pecuniary or non-pecuniary. Special damages on the other

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hand have to be specifically pleaded and strictly proved.

They refer to past expenses and loss of earnings. The exact
loss must be pleaded where the precise amount of item has
become clear before the trial. Loss of future earnings or
post-trial loss differs from pre-trial loss which comes
under special damages. The reason that special damages
have to be specifically pleaded is in order to comply with
its object which is to crystallize the issue and to put the
defendants on their guard and tell them what they have to
meet when the case comes on trial. (See Domsalla v.
Barr[1969] WLR 630; Phillips v. Phillips [1878] QBD
127, 139 and Ong Ah Long v. Dr. S. Underwood [1983]
CLJ (Rep) 300”.

[73] With no evidence led to prove loss of marriage prospects, with

respect, I agree that this claim was speculative and should not be
allowed.

[74] We now move on to special damages which was hotly contested.

[75] Having reviewed the evidence and in particular that of Shazayati

binti Che Hassan (PW6), the Managing Director of Shaliscare
Nursing and Services Sdn Bhd who was said to be paid
RM33,000 in cash, this Court has no reason to depart from the
suspicion expressed by the learned SCJ as the invoices were
issued by PW6 from a corporate entity that is dormant. PW6 had
difficulties explaining the nursing care report prepared by her in
English and when pressed on the financial standing of her
company of 6 years of which she and her daughter were
directors, she sought to hide behind it being confidential
(Enclosure 18, pp 829 to 850).

[76] Although, the mother (PW4) of the first plaintiff who was
unemployed said that she paid RM33,000 to PW6, the learned
SCJ found this story to be incredible. More so when PW4 was

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not able to produce any supporting documentary evidence in the

form of bank statements, goods and services tax receipts or
income tax statements for payments made leading to learned
counsel describing PW4 as a professional “evidence giver” with
the underlying imputation that she was produced to mislead the
Court.

[77] In Aviation Development Corporation (M) Sdn Bhd v. Yayasan

Selangor [2022] 4 CLJ 165, [2022] MLJU 297 (FC), the Federal
Court agreed with the Court of Appeal’s qualified finding that
there is nothing wrong in making payment in cash but a lack of
inter alia supporting documents such as bank statements to show
withdrawal of monies, receipts and invoices issued by the third
parties, documents from the Inland Revenue would lead to the
conclusion that there was inadequate evidence to prove the cash
payments.

[78] Indeed, the learned SCJ found the testimony of PW6 to be

wanting and found her not to be a credible witness (Enclosure
29, p 27). Premised on a review of PW6’s evidence particularly
that of hers given under cross- examination on the staff said to
be engaged by her, this Court has no reason to interfere with the
learned SCJ’s findings.

[79] This Court is grateful for the careful submissions of learned

counsel for the first and second defendants (Enclosure 30, pp
157 to 203) on quantum which were adopted by learned counsel
for the third defendant and this Court accepts the same and in
the circumstances, finds that the findings and award on quantum
do not warrant appellate interference, if the issue of liability had
been found to be in favour of the plaintiffs.

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Summary

[80] This Court is mindful that while sitting as an appellate court, the
law on its role is settled. As I have said in Akijaya Development
Sdn Bhd & Ors v. Chan Kim Yoong & Anor [2021] 1 LNS 360
(HC) (and affirmed by the Court of Appeal):

“[21] …..The Court ought not to disturb the decision of

the trial court unless it is shown to be plainly wrong, a test
which is consistent with that of ascertaining whether the
trial Judge arrived at a decision without judicial
appreciation of evidence. See Gan Yook Chin (P) & Anor
v. Lee Ing Chin @ Lee Teck Seng & Ors [2004] 4 CLJ 309;
[2005] 2 MLJ 1 FC at para 14 and recently re-affirmed by
the Federal Court in Ng Hoo Kui & Anor v. Wendy Tan
Lee Peng, Administrator of the Estates of Tan Ewe Kwang,
Deceased & Ors [2020] 10 CLJ 1 where it was held that:-

‘The law is clear in that the principle on which an

appellate court could interfere with findings of fact
by the trial court is ‘the plainly wrong test’
principle. The principle encompasses differing and
multiple circumstances, but must necessarily apply,
inter alia, to situations where it can be shown that
the impugned decision is vitiated with plain material
errors, or where crucial evidence had been
misconstrued, or where the trial judge had so
manifestly not taken proper advantage of having seen
and heard the witnesses or not properly analysed the
entirety of the evidence before him, or where a
decision was arrived at without adequate judicial
appreciation of the evidence such as to make it
rationally unsupportable. This said, the criterion
that is central to appellate intervention must remain

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that deference to the trier of fact is still the rule and

not the exception; and the plainly wrong test ought
not to be used by the appellate court as a means to
substitute the impugned decision with its own.’”

[81] Viewed in its totality, there was ample evidence to support the
finding of the learned SCJ that the first defendant was driving
AAT 8623 at the time of the accident and, therefore, the
complaint that there had been insufficient consideration of the
evidence is without merit.

[82] On the whole, for the reasons I have set out above, in my
considered view, the learned SCJ has not failed to appreciate the
evidence led or misdirected herself as to arrive at a judgment
that is plainly wrong as to warrant appellate intervention.

Separate Sets of Costs

[83] As for awarding separate sets of costs of RM10,000 to the first

and second defendants despite being represented by the same
solicitors, I am also not minded to disturb the total amount of
RM20,000 given the undoubted huge amount of work that had
gone into preparing for the trial in the Sessions Court.

Conclusion

[84] In the upshot, the appeal is dismissed with costs. After hearing
parties, the Court awarded costs of RM100,000 to the first and
second defendants and RM100,000 to the third defendant with
both set of costs to be subject to payment of the allocatur fee.

Epilogue

[85] Police Sergeant Abdul Kudus bin Ismail (PW1) had in his
telephone conversations with DW12 alluded to assisting the boy

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who was severely injured on compassionate grounds. This he did

by supplanting another vehicle which has insurance leading to
him being subjected to disciplinary proceedings. We also have
evidence of the poor boy’s sufferings; the first defendant being
convicted and fined under the Road Transport Act 1987 for
making a false statement under section 108(d) of the Act and
the huge amount of judicial time taken up at great expense to the
public to hear this matter. The heavy legal costs incurred would
undoubtedly be large. All because AAT 8623 did not have any
motor insurance policy on foot at the time of the accident. This
is most tragic and unfortunate when the premium, is at most a
couple of thousand ringgit. The dire consequences that arise
from a lack of motor insurance must be drummed into all road
users with the message that before anyone goes onto the road
with a motorized vehicle they must ensure that they are insured,
as is so required by section 90 of the Road Transport Act
1987), so that third parties who are injured by them will be able
to get compensation to get on with their lives as far as monetary
compensation is able to, i.e. suffer but with a degree of
reasonable comfort.

Dated: 29 APRIL 2022

(SU TIANG JOO)

Judicial Commissioner
High Court in Malaya
Ipoh, Perak

COUNSEL:

For the appellants - Sharon Sidhu, Norasmadi Mohd Shariff, Noraini

Mohd Amran & Surinder Kaur; M/s Norasmadi & Noraini

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For the respondent 1 & 2 - Kenneth George William, Lenneth Lim

Soon Sheng, Selvanayagam Kailasam, Amelia Yee Zi Xin, Nuramni
Fatira Mohd Nizam & Nuriana Abd Majid; M/s Kenneth William &
Associates

For the respondent 3 - Raam Kumar & Norleena Jamal; M/s K B Tan
& Kumar

Case(s) referred to:

Govinaraju Nagarajan v. Pacific & Orient Insurance Co Bhd [2014] 1

CLJ 1076; [2014] 8 MLJ 839 (HC)

Pacific & Orient Insurance Co Bhd v. Rasip Hamsudi & Ors [2017] 4
CLJ 572; [2017] 2 MLJRA 659 (CA)

Nivesh Nair Mohan v. Dato’ Abdul Razak Musa, Pengerusi Lembaga

Pencegahan Jenayah & Ors [2021] 8 CLJ 163; [2021] 5 MLJ 320
(FC)

Gerard Jude Timothy Pereira v. Kasi a/l KL Palaniappan [2017]

MLJU 925

Analabs Resources Berhad & Anor v. Khor Swe Foo [2019] MLJU
1505

S Ashok Kandiah v. Dato’ Yalumallai Muthusamy [2011] 1 CLJ 460

(CA)

Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd [1998] 1 CLJ Supp 147
(HC)

Ho Hup Construction Company Bhd v. Woo Thin Choy [2015] 9 CLJ

706 (CA)

Michael Anthoney v. Krisnan Kali & Ors [2020] 1 LNS 1606 (HC)

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Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors, [2016] 2 CLJ
885; [2016] 1 PIR [16]; [2016] 2 AMR 217; [2016] 1 PIR [16]

Wong Li Fatt William (an infant) v. Haidawati Bolhen & Anor [1994]
1 LNS 196; [1994] 2 MLJ 497

Khoo See Moi v. Tay Teik Chang [1970] 2 MLJ 249 (HC)

Kalaivanan A/L Sundarajoo & Anor v. Poo Cheng Hock [2017] 9 MLJ
806 (HC)

Ngooi Ku Siong & Anor v. Aidi Abdullah [1984] 1 CLJ Rep 294,
[1985] 1 MLJ 30

Aviation Development Corporation (M) Sdn Bhd v. Yayasan Selangor

[2022] 4 CLJ 165, [2022] MLJU 297 (FC)

Akijaya Development Sdn Bhd & Ors v. Chan Kim Yoong & Anor
[2021] 1 LNS 360 (HC)

Legislation referred to:

Road Transport Act 1987, ss. 90, 96, 108(d)

Courts of Judicature Act 1964, ss. 15A, 29, 60(1)

Criminal Procedure Code, s. 112

Notice : This Grounds of Decision is subject to official editorial

revision

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