[2013] 2 PIR [23]

187

1
Zulimi b Lifat & Anor
v
Jos ak Alam
5

Sessions Court, Miri – Summons No. MR/CIV 53-27-2011

Awang Kerisnada Awang Mahmud scj

[23] Quantum – Head – Consciousness – Loss of consciousness – Skin – Degloving

10 injury – 20 cm x 15 cm degloving wound over left shoulder with exposed bone and
active bleeding – Spine – Brachial plexus – Brachial plexus injury of left upper limb
– Upper limb – Arm – Closed fracture midshaft of left humerus – Finger – Extensor
indicis tendon injury of left second and third fingers with extensor digitorum cut
– Palm – Open fracture of left third metacarpal bone – Shoulder – Open fracture of
left clavicle – Miscellaneous condition – Muscle wasting – Scars
15

Date of accident
July 1, 2010

Date of grounds of judgment

20
July 11, 2012

Judgment received
June 24, 2013
25
Brief description of plaintiff’s injuries
First plaintiff
1. 20 cm x 15 cm degloving wound over the left shoulder with exposed bone
and active bleeding
2. Brachial plexus injury of the left upper limb
30 3. Closed fracture midshaft of the left humerus
4. Extensor indicis tendon injury of the left second and third fingers with
extensor digitorum cut
5. Loss of consciousness
6. Open fracture of the left clavicle
35 7. Open fracture of the left third metacarpal bone

Disabilities
First plaintiff
1. Deformed left shoulder
40
2. Difficulties in carrying heavy objects and performing other strenuous
physical activities
188 Personal Injury Reports [2013] 2 PIR [23]

3. Inability to resume sports and employment 1

4. Insensate left upper limp
4. Loss of congruency in the left third metacarpal phalangeal joint
5. Malunited fracture of the left clavicle with superior angulation of the
fractured site 5
6. Malunited fracture of the left humerus with lateral and posterior angulation
at 30°
7. Unsightly scarring over the left shoulder
8. Severe muscle wasting in the shoulder region
9. Weakness in the left upper limb
10

Plaintiff’s age
(First plaintiff)
(a) As at date of accident : 25 years
(b) As at date of hearing : NA
15
(Second plaintiff)
(a) As at date of accident : NA
(b) As at date of hearing : NA

Plaintiff’s occupation 20
(First plaintiff)
(a) As at date of accident : Welder
(b) As at date of hearing : NA

(Second plaintiff) 25
(a) As at date of accident : Welder
(b) As at date of hearing : NA

Plaintiff’s earnings
(First and second plaintiffs)
30
(a) As at date of accident : NA
(b) As at date of hearing : NA

Liability
70% against the defendant; 30% against the first plaintiff in relation to the
deceased 35

40
 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 189

1 Award (Based on 100% liability)

First plaintiff
1. General damages
(a) 20 cm x 15 cm degloving wound over the
5 left shoulder with bones exposed and active
bleeding – RM 10,000.00
(b) Brachial plexus injury to the left upper limb
with deformed left shoulder, difficulties in
carrying heavy objects and performing other
10
strenuous physical activities, insensate left
upper limb, inability to resume sports and
employment and weakness in the left upper
limb – RM 75,000.00
(c) Closed fracture midshaft of the left humerus
with malunited fracture of the left humerus
15 and lateral and posterior angulation at 30° – RM 40,000.00
(d) Extensor indicis tendon injury of the left
second and third fingers with extensor
digitorum cut – RM 25,000.00
(e) Loss of consciousness – RM 5,000.00
20 (f) Open fracture of the left clavicle with wound
debridement and open reduction and internal
fixation (plate), deformity of the left shoulder,
malunited fracture of the left clavicle with
superior angulation of the fractured site and
the implant was seen in situ – RM 30,000.00
25
(g) Open fracture of the left third metacarpal
bone with wound debridement and extensor
indicis tendon of the left hand, repaired with
loss of congruency in the left third metacarpal
phalangeal joint – RM 25,000.00
30 (h) Unsightly scarring over the left shoulder – RM 15,000.00
(i) Severe muscle wasting in the shoulder region – RM 10,000.00

2. Special damages
(a) Cost of future surgery – RM 1,200.00
(b) Cost of JPJ reports – RM 10.00
35
(c) Cost of medical report from Miri Hospital – RM 40.00
(d) Cost of medical report from Dr Richard Chen – RM 500.00
(e) Cost of medication – RM 38.00
(f) Cost of police report – RM 48.00
(g) Cost of repair of motorcycle – RM 1,000.00
40 (h) Food and drinks – RM 22.60
(i) Loss of earnings (RM1,891.50 x 5 months) – RM 9,457.50
(j) Loss of future earnings (RM1,980.00 x
12 months x 16 years) – RM 362,880.00
190 Personal Injury Reports [2013] 2 PIR [23]

(k) Loss of personal effects – RM 600.00 1

(l) Nursing care (RM800.00 x 6 months) – RM 4,800.00
(m) Other miscellaneous expenses (transportation
expenses, travelling expenses incurred by
plaintiff’s family whilst visiting plaintiff in 5
the hospital and petrol expenses) – RM 907.00
(n) Travelling expenses – RM 70.00

Second plaintiff
1. General damages
10
(a) Loss of earnings/loss of dependency
(RM1,000.00 x 12 months x 16 years) – RM 192,000.00
(b) Pain and suffering endured for a limited
period of time (5 hours) – RM 10,000.00

2. Special damages 15
(a) Cost of medical report from Miri Hospital – RM 40.00
(b) Cost of police report – RM 4.00
(c) Funeral expenses and other reasonable
expenses such as transportation, fuel,
visitation expenses, medical expenses and 20
other miscellaneous expenses incurred by the
deceased’s family in relation to the deceased – RM 3,054.50
(d) Loss of personal belongings of the deceased – RM 1,000.00

Note
1. An appeal was lodged by the defendant against the Sessions Court’s 25
finding on quantum, interest and costs at the High Court, Miri in Civil
Appeal No. MYY-12B-2/6-2012.
2. An appeal was also lodged by the plaintiffs against the whole of the
Sessions Court’s decision at the High Court, Miri in Civil Appeal No.
MYY-12B-3/6-2012. 30
3. The High Court on March 5, 2013 in allowing both the appeals, held as
follows:
(a) The defendant was 100% liable for the motor vehicle accident.
(b) The award for loss of future earnings awarded to the first plaintiff
was reduced from RM362,880.00 to RM282,355.20.
35
(c) The award for the brachial plexus injury to the left upper limb awarded
to the first plaintiff was reduced from RM75,000.00 to RM60,000.00.
(d) Interest at 2% per annum on special damages from date of accident
until date of judgment, at 4% per annum on general damages from
date of service of summons until date of judgment and thereafter at
5% per annum from date of judgment. There was also no interest 40
awarded for the loss of future earnings of the first plaintiff.
 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 191

1 Interest
(a) 4% per annum on special damages from date of accident until date of
judgment.
(b) 8% per annum on general damages from date of service of summons until
5 date of judgment.
(c) 8% per annum on total judgment sum from date of judgment until date
of full settlement.

Cases referred to by the court

10
Chin Kon Wah & Anor v Cheah Chee Meng & Anor [2009] 1 PIR [24], sc
Norhayati bt Bdaruddin v Ambing ak Salau & Anor [2011] 1 PIR [80]; [2011] 1
PIR [80], sc
Nurul Jannah bt Johari v Chan Kam Seng & Anor [2008] 1 PIR [19], sc

Legislation referred to by the court

15
Civil Law Act 1956, s 28(A)(2)

Solicitors
Bibi Waheeda Arman Khan and Nurulnita Kota (Shad & Partners) for plaintiff
Patrick Liaw (Jimmy H T Wee & Co) for defendant
20

Awang Kerisnada Awang Mahmud scj

[1] This is a suit by the plaintiffs against the defendant filed at the Sessions
Court in respect of an accident, which happened on July 1, 2010 at 7.45 p.m.
25
[2] The accident was said to have happened at or near the junction of
Simpang Permy Jaya, Jalan Tudan, Miri. The first plaintiff was the male rider
of the motorcycle Registration No. QSB 8043 and the deceased, a female, was
the pillion rider and the defendant was the driver of a car No. QMH 3551
who is the registered owner of the car.
30
[3] There are 11 witnesses which had been called throughout the trial, six
of the plaintiffs’ and five for the defendant in this case which are:

PW1 – the first plaintiff himself;

35 PW2, Puan Dang Rita bt Manglan – the mother of the first plaintiff;

PW3, Encik Martin Baringai bin Amin – the supervisor of the first
plaintiff;

40 PW4, Puan Sabariah bt Abdul Rahman – the second plaintiff who is the
sister of the deceased pillion rider;
192 Personal Injury Reports [2013] 2 PIR [23]

PW5, Puan Rabiah bt Johanie – the Human Resource Officer of the 1

employer of the deceased pillion rider;

PW6, Sergeant Othman bin Abdullah – the assistant investigating officer.

5
[4] And the defendant’s witnesses are:

DW1, Marian anak Rusa – the defendant’s wife;

DW2, Chundang anak Jayan – the defendant’s brother in law;

10
DW3, Dona Marcella anak Jos – the defendant’s daughter;

DW4, David Tiung Daniel – the insurance adjuster;

DW5, Jos anak Alam – the defendant himself. 15

[5] There are two version of the accident here which is by the plaintiffs’
own testimony in court and the other version is by SD5 the defendant in this
case and that of his daughter who is DW3. The daughter of the defendant
was a passenger in the defendant’s car when the accident happened. The two
versions are distinct to one another on the contention on who is more liable 20

among them.

[6] The agreed facts of the case are confined on the accident only, but both
parties strenuously argued and differed on what caused the accident. Therefore,
before going to the issue of liability, it is important for me to understand how
25
the accident happened.

[7] On July 1, 2010 at about 7.45 p.m. the first plaintiff was riding his
motorcycle with the deceased pillion rider along the road at the E Mart
Supermarket to the Shell Petrol Station at Jalan Tudan, Miri. (Marked as
simpang E Mart in the sketch plan exh P75(a) to (c).) 30

[8] As the plaintiffs’ motorcycle reached the junction at the “Simpang

Permy Jaya”, and was still proceeding on a straight direction, suddenly the
defendant’s car who was at the opposite side of the plaintiffs’ wanted to
make a turn to the junction. Then the defendant’s car did make a turn to the
defendant’s right side and thus it resulted in a collision with the plaintiffs’ 35
motorcycle. It must always be borne in mind here, that shortly before the
accident, the plaintiffs’ motorcycle was always on a straight direction and it
was the defendant’s car which was travelling opposite the plaintiffs, which
turned to the junction thus resulting in the accident which caused the first
plaintiff’s rider to sustain injuries and the pillion rider to die from the accident. 40
 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 193

1 [9] The plaintiffs’ version of the accident is that he has the right of way
because his motorcycle was travelling in a straight direction on a straight
road and when he reached the junction, then the defendant’s car ought to
have waited until the motorcycle passed through and only then the car could
5 turn to the junction.

[10] It was contended by the first plaintiff, PW1, that the accident was said
to have occurred when he was riding his motorcycle on the road and thus
at the “Simpang” of Jalan Permy Jaya, he has the lawful right of way as he
was travelling straight. In his testimony, the first plaintiff also testified that
10 his motorcycle lights were on at all times at the dark hours of 7.45 p.m. thus
the defendant must have been able to notice his motorcycle. He said that the
defendant’s car had swerved without even stopping and had also out of sudden
drove to the junction without stopping at all, thus making it impossible for
the first plaintiff to stop his motorcycle in time to avoid collision with the
15 defendant’s car.

[11] In this regards, I had also considered the sketch plan which was
tendered as exh P75. From this sketch plan I am able to see that the directions
of travelling of both vehicles were varied. The plaintiffs’ motorcycle and the
defendant’s car were travelling in the opposite directions towards one another.
20 And when the plaintiffs’ motorcycle was still travelling in a straight direction
and was near the junction, it was then that the defendant’s car then made a
sudden and abrupt turn to the junction thus resulting in a collision with the
plaintiffs’ motorcycle which was at all time travelling in a straight direction.
The defendant was alleged to be continuously driving from the road to the
junction and without stopping to make a proper lookout before turning into
25
the junction and was doing so despite the plaintiffs’ motorcycle still riding
on the straight road then.

[12] I shall now turn to the version of the defendant’s testimony. In his
testimony, DW1 who was the defendant agreed that he had turned to the
30 junction. But his main defence was that he had switched his signal as he
approached the junction before making his turn. He further testified that he
did not see the lights of any car or motorcycle at that time before making his
turn into the junction.

[13] DW5’s testimonies were supported by his daughter’s testimony who

35 is DW3. She testified in court that she was with her father and shortly before
the accident she could not see any lights from the opposite direction, thus
the car then turned to the junction and that was when the accident occurred.

[14] In this regard, I had seen sketch plan and I find some consistency in the
plaintiffs’ testimonies and which was also corroborated by the sketch plan.
40
194 Personal Injury Reports [2013] 2 PIR [23]

This is a case of an accident which happened at the junction of a straight 1

road. Therefore in my opinion there can be four possibilities which are either
it was the first plaintiff or the defendant who broke the rule or who did not
observe the traffic on the road.
5
[15] The first possibility is that the defendant had ignored or failed to observe
the rule of prudence when turning to his right to proceed to the junction. In
this first possibility, the defendant must have ignored any oncoming vehicle
from his opposite direction. And in this first possibility, the defendant might
have failed to stop for a while to observe traffic conditions in the middle of the
road before proceeding to the junction. In this first possibility the defendant 10
might have clearly been wrong. In this first possibility the defendant could
be held to be 100% liable.

[16] In the second possibility the defendant could have stopped in the
middle of the road first and had observed the traffic conditions and observed
15
the rule of prudence before turning to the junction. In this second possibility,
the defendant might have done all these and the first plaintiff could have been
riding with his lights on. In this possibility, the defendant might have not seen
the first plaintiff despite the lights of the motorcycle. In this possibility, the
reason why the defendant may have not seen the first plaintiff’s motorcycle was
because he did not stop long enough at the middle of the road before turning 20
to the junction. And in this second possibility, the defendant might have turned
to the junction and by the time he might have seen the plaintiffs, it was too
late for him to stop his car which may have already be at the junction thus it
resulted in a collision between them. In this second possibility the defendant
is liable to a large extent, if not wholly but to a larger degree. The plaintiffs
25
could be liable as well but to a smaller degree. In this second possibility the
defendant could be held to be liable 75% and the plaintiff 25%.

[17] There is also a third possibility. The third possibility is when the first
plaintiff might not have switched on his motorcycle lights and thus the
defendant might not have seen his motorcycle. Thus when the defendant 30
was driving his vehicle and had approached his junction, the defendant
then immediately turned to the junction because there was no light seen
from the opposite. In this third possibility, the defendant then turned and
the defendants’s car then collided with the first plaintiff’s motorcycle. In this
possibility the plaintiffs must be held liable to a full extent of 100%.
35
[18] The fourth possibility is when both parties could not see one another
because of the road conditions, distance between them and both were travelling
on the road without paying sufficient attention to the traffic conditions and
the presence of other vehicles. In this case, the scenario is that both the first
plaintiff’s and defendant’s vehicle were travelling with all their lights on, 40
and that both just wanted to proceed to their respective destinations. So the
 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 195

1 plaintiff was riding straight and might not have notice the defendant’s car
which wanted to turn to the junction. In this fourth possibility, the defendant
might have noticed the first plaintiff’s motorcycle but nevertheless thought
that it was still safe to turn to the junction. However to the misfortune of all,
5 the first plaintiff who was riding his motorcycle, might have thought and
might have expected the defendant to stop but unfortunately the defendant’s
car did not. In this possibility the defendant could have stopped for a while
or slowed down but did not do these long enough. And on part of the first
plaintiff, even though he has the right of way, but the first plaintiff was also
not prudent as he did not slow down when his motorcycle was about to
10
reach the junction.

[19] In delving further on this fourth possibility, I must emphasise that the
court, with all the parties, had visited the scene of the accident on April 4,
2012 at 7.45 p.m. till 8.52 p.m. In my observation, the road was a busy road
15 and the junction too was busy with volumes of vehicles at around 7.45 p.m.

Judgment of the Sessions Court judge

[20] Thus, in this fourth possibility the defendant might have turned to the
junction because the defendant might have thought that it was still safe for
20 him to do so, but in actual fact was not as the first plaintiff’s motorcycle was
actually ridden in a fast speed. Therefore when the defendant’s car turned
into the junction, the first plaintiff’s motorcycle could not help but knock the
car thus resulting in the accident. In this fourth possibility it might have been
a matter of a wrong calculation by the defendant and might also have been
25
a matter of a little lack of prudence by the plaintiff.

[21] Therefore, in this fourth possibility, the apportionment of liability should

have been 70% borne by the defendant and 30% borne by the first plaintiff.

[22] I say that the liabilities are 70% to 30% because the first plaintiff too
30
have faults and lack of prudence. Even assuming that the first plaintiff’s lights
were on, the first plaintiff must have clearly seen that there is a car just about
to enter the junction as the junction itself was quite apparent from some street
lights at one place. The first plaintiff must have known that upon reaching
such junction, there would be vehicles waiting to go out to the main road or
vehicles about to turn in. Therefore, it would only be prudent that he must
35 try to slow down but looking into the facts of this case and that the damage
to the car was at the left rear door, the first plaintiff must not have slowed
down at all.

[23] Having considered all these four possibilities, I shall now turn back to
the case proper. It is clear that the defendant is heavily relying on the defence
40
that the first plaintiff was riding without his motorcycle lights on before the
196 Personal Injury Reports [2013] 2 PIR [23]

accident. Thus it was strenuously argued by the learned defendant’s counsel 1

that the defendant and his daughter were unable to see the motorcycle when
their car turned to the junction.

[24] The learned plaintiffs’ counsel on the other hand is putting a case that
5
the plaintiff had switched on his motorcycle lights at all times thus when
the motorcycle reached the junction, the defendant’s car simply turned and
resulted in the motorcycle hitting the car.

[25] The issue in a case like this is which of all the four possibilities are more
probable and reasonable in the circumstances and who among the plaintiffs 10
and the defendant are closer to observing the rules and regulations of the
road. It is also the question of who is more prudent and more careful.

[26] In my finding I find that both parties are liable to some degree in some
way or another. I believe and rule that the questions of who is more adherence
to the rules and regulations of the road and who is more prudence is a mixture 15
of both and to be blended in looking at how the accident could have actually
happen and the circumstances of the road and the spot of the accident itself.

[27] Firstly, I could not fathom or accept the defendant’s contention that
the plaintiff did not switch on his lights because this would not be probable
20
despite the two defendant’s witnesses testimonies to that effect. By visiting the
road, it would not be probable to believe that the plaintiffs’ motorcycle lights
were not switched on as that would cause difficulty to the first plaintiff in
maneuvering his motorcycle on the road. The defendant’s testimonies on that
point is that of the defendant himself and of his daughter. I am not rejecting
the defendant’s daughter evidence simply because she is his daughter, but 25
the fact that she is a daughter must put this court on greater alert and on
extra caution. In my assessment of evidence, it is not probable to believe
that the daughter would be paying extra attention to the road as much as
her father because she was a passenger of the car. She was sitting on the left
hand side of the car. While she might also be looking at the front directions
30
but I believe that she was not in a position that she had to pay attention to
the oncoming traffic.

[28] Therefore what is apparently more nearer to the truth in my view is

the fourth possibility which I had outlined earlier. In this fourth possibility,
both parties must have not exercise the rule of prudence to a lot of degree and 35
must have not been careful. However having ruled as such, in a case where
the accident is one at a junction, and when both parties are not exercising the
necessary prudence this must to some extent, be militated against the one
who had turned to the junction from the main road and in which in this case
is the defendant. Another factor which must militate to a little extent against
40
 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 197

1 the defendant is the fact that he was driving a bigger vehicle which was a car
and his driving should be more prudent than the plaintiff as he was turning
to the junction and the plaintiff had a greater right of way.

[29] That being the case, then I rule that both parties are liable for the accident.
5
[30] I shall now touch on the results of the police investigation. The
investigating officer in this case is PW6 who is Sergeant Othman bin Abdullah.
In looking at the investigating officer’s testimony and the sketch plan, PW6
concluded that the defendant’s car did not have the right of way to go into the
10 junction and should have stopped first. It was testified that the motorcycle had
the right of way and the defendant’s car had gone into the junction without
giving due regards to the motorcycle and without stopping to ensure that it
was save to go into the junction.

[31] In looking at the sketch plan and in considering the testimony of

15 the investigating officer at the outset, I can fully agree with his conclusion.
However this is an accident which happened at night. Therefore the night
must not have been clearer than the day. Thus in adjusting the conclusion of
the investigating officer to the present scene in our case today, I do not actually
think that the car had totally ignored the motorcycle. The fault of the car in our
20 case today, I think is the failure to stop long enough coupled with the wrong
calculations. The defendant could, in all probability see the motorcycle but
that was when the motorcycle was about 70 to 100 metres from the junction.
The defendant’s wrong calculation was because he thought that at that time
it was still safe for him to enter into the junction. And the first plaintiff’s fault
was failure to slow down at a busy junction. The fact that this junction was
25 busy can be seen when the court visited the scene. Even if the junction was
not busy at the time of the accident but any prudent motorcyclist must also
slow down when approaching any junction, even if they have the right of
way as they must anticipate that vehicles may come out from it at any time.
In this case, I believe the first plaintiff did not do that and did not exercise
30 some caution and prudence thus in some degree contributed to the accident.

[32] Thus the ruling is 70% liability to be borne by the defendant and 30%
by the first plaintiff.

Assessment of damages
35
Special damages

(1) Nursing care while on treatment for six months

[33] From evidence testimony, the first plaintiff was taken care by his family
40
during the time in hospital. The first plaintiff is asking for RM1,000.00 per
month for six months.
198 Personal Injury Reports [2013] 2 PIR [23]

[34] However, I am not prepared to grant a full claim of RM1,000.00 per month 1
because I think that it is the obligation of the family members to take care of
one another in times of need for this reason, I allow RM800.00 per month x 6
months equalling RM4,800.00.
5
Award given: RM4,800.00.

(2) Cost of future operations

[35] Award given: RM1,200.00.

10
(3) Loss of future income

[36] I agree with the calculations of the average income of the first plaintiff
as submitted by the learned plaintiffs’ counsel. In this regards I had also
considered the submissions of the learned defendant’s counsel.
15
[37] The first plaintiff was 25 years old when the accident happened. In this
regards I am satisfied that the first plaintiff was working at the employment
of Target Ship Building Contractor. He was a welder.

[38] Looking at the statutory declaration of one Kong Kui Fang, the first
20
plaintiff was indeed working with a salary of RM1,853.75 to RM2,363.75 per
month.

[39] While I do agree with the learned defendant’s counsel that the first
plaintiff’s salary was not a fixed one, but somehow this court must arrive at
an amount, which must be deemed to be his average decent salary. 25

[40] On certain months, for example for the months of February and March
2010, the first plaintiff was earning salaries of RM2,227.50 for February
2010 and RM2,387.50 for March 2010 respectively. In my view in these two
months the first plaintiff had done certain overtime thus it explains why he
has earned that much. 30

[41] However in April 2010 he was earning a salary of RM1,875.00 only

and in May 2010 he was earning RM1,922.50. And finally in June 2010 he was
earning only RM995.00.

[42] In my view having considered all these different salaries on different 35

months I am prepared to agree with the learned plaintiff’s counsel that the
average salary of the first plaintiff should be in the sum of RM1,8901.00 per
month.

[43] The multiplicand for this calculation is 16 years as the plaintiff was
40
25 years old at the time of his accident. This would mean RM1,890.00 x 12
months x 16 years = RM362,880.00
 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 199

1 [44] In addition to this, the fact that the first plaintiff was unable to work for
five months after the accident must also be added. On the basis of RM1,891.50.
I allow an amount of RM9,457.50 accordingly.

Award given: RM362,800.00 for all the multiplicands until the first
5
plaintiff’s working years of 55 years.

[45] I shall write a full written judgment on this point. (Section 28(A)(2) of
the Civil Law Act 1956 applies.)

10 (4) Petrol expenses

[46] Award given: RM70.00.

(5) Expenses to buy medicines at a pharmacy

15 [47] Receipt exh P15 shown

Award given: RM38.00.

(6) Food and drinks

20
[48] Receipts shown:

Award given: RM22.60.

(7) Cost of repair of motorcycle

25
[49] Even no receipt was shown, the court believes that a repair was made
nevertheless. This is from the oral testimony in court.

Award given: RM1,000.00

30 (8) Medical report obtained from the Miri Hospital

[50] Allowed: RM40.00 allowed; an RM40.00 allowed (receipt shown and

tendered).

(9) Medical reports from Dr Richard Chen

35

[51] Award given: RM500.00 allowed as evidence exh P19 shown claim.

40
200 Personal Injury Reports [2013] 2 PIR [23]

(10) Police report: 1

[52] RM48.00 allowed (receipts shown and tendered).

(11) JPJ reports

5

[53] Award given: RM10.00 as receipt shown.

(11) Other miscellaneous claims which are transportation expenses, visitation by

family while in the hospital, petrol expenses
10
[54] I have noted many receipts are shown. The cost of visitation by family
members while the first plaintiff was in hospital on several occasions should
be allowed as this is common judicial trend. I am satisfied with the claim.

Allowed: RM907.00.
15
(12) Loss of personal effects

[55] Again no documentary evidences or even not enough oral evidences

have been adduced at this point. But I must recognise that in this accident
which the plaintiff was hurt and injured, it would be reasonable to believe 20
that he must have incurred damages to his clothing.

Allowed: RM600.00.

General damages for the first plaintiff

25
Medical evidences

[56] In arriving at the right computation on awards and in determining the

extent of the first plaintiff’s disabilities, I had considered the medical reports
of who are Dr Richard Chen Shyue Woon and the other report of Dr Francis 30
Ting Siew Sieng as well.

[57] In this regard Dr Chen’s specialist report is very useful.

[58] The full written grounds on the awards will be given at a later stage.
This is the brief ruling only and the grounds will be written later. 35

[59] The injuries and sufferings are as follows:

(1) Loss of consciousness

[60] Award given: RM5,000.00. 40

 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 201

1 (2) 20 x 15 cm (degloving) wound over the left shoulder with bones exposed and
actively bleeding

[61] I had considered the submissions of both the learned plaintiffs’ and
5 defendant’s counsel and all the details of the disabilities of the first plaintiff
and the physical inadequacies. Dr Chen’s report and the specialist testimony
had also been considered. Dr Francis report is also referred to.

[62] In this regard, I find that in case authority given by the first plaintiff,
the maximum allowed for this type of injury is only RM10,000.00. In their
10 submissions the plaintiffs’ counsel did not explain why they seek RM20,000.00.
In the case of Chin Kon Wah & Anor v Cheah Chee Meng & Anor [2009] 1 PIR
[24], the award given was RM10,000.00 for the degloving of the left hand.

Award given: RM10,000.00.

15
(3) Extensor indicis tendon of the second/third fingers (left) injury with extensor
digitorum cut

[63] I had also studied the medical reports on this point and again the
testimonies of the medical expert and the doctor Dr Francis’ report. There is
20 no dispute that the first plaintiff suffered this injury as well. Dr Richard Chen,
the medical expert report had also mentioned this as well. I shall touch on
the case authorities in my full written judgment.

Award given: RM25,000.00.

25
(4) Open fracture of the left clavicle with wound debridement and open reduction and
internal fixation (plate) left clavicle, deformity of the left shoulder and left clavicle
malunited with superior angulation of the fracture site and the implant was seen in situ.

[64] In this regard, the medical expert report is self explanatory. While I have
30 read and considered all the case authorities I must observe that in my reading
of the defendant’s case authority which is Razak b Baharudin & Anor 261 (MD)
the amount allowed which was RM20,000.00 is quite low. The reason why I
say so is because the facts in our case today is a little bit different.

[65] There is clear open fracture and clear open reduction suffered by the
35 first plaintiff in our case today. There is deformity of the left shoulder and
superior angulation of the fracture site and the implant was apparent.

[66] In our case today, based on Dr Chen’s report the condition of the first
plaintiff is quite severe and he endured more suffering.
40 Award given: RM30,000.00.
202 Personal Injury Reports [2013] 2 PIR [23]

(5) Open fracture of the left third metacarpal bone, with wound debridement and 1
extensor of the indicis tendon repair with loss of congruency of the left third metacarpal
phangeal joint etc.

[67] Dr Richard’s report is also referred. I had also considered all the case 5
authorities submitted by the first plaintiff and defendant.

Award given: RM25,000.00.

(6) Closed fracture of the left midshaft humerus with malunited fracture of the left
humerus bone with lateral and posterior angulation of 30° 10

[68] I had considered the submissions of the plaintiff’s and defendant’s

counsel.

[69] In looking at this kind of injury, I have considered the case authority of
15
Nurul Jannah bt Johari v Chan Kam Seng & Anor [2008] 1 PIR [19] in which an
award of RM30,000.00 was allowed. However there is another case authority
which is more closer to our case today which is Norhayati bt Bdaruddin v Ambing
ak Salau & Anor [2011] 1 PIR [80]. In that case an amount of RM45,000.00 was
allowed for the injuries involving fracture midshaft of the right humerus
resulting in deformity and angulated right arm. 20

Award given: RM40,000.00.

(7) Complete left brachial plexus injury with weakness of the upper limb, deformity of
the upper limb, insensate left upper limb, difficulty to carry heavy objects and other
25
strenuous physical activities, unable to resume work, sports.

[70] In regard to this injury, I had considered the medical reports. The first
plaintiff is suffering heavily as I can see in the reports. I have considered all
the case authorities of both plaintiffs’ and defendant’s counsel and I believe
an amount of RM75,000.00 is reasonable. 30

Award given: RM75,000.00.

(8) Marked scarring over the left shoulder

[71] I have considered the case authorities on injuries on this point. Apart 35

from the medical report, the court and all the parties had a physical look at
this scar and it is very unsightly. And above all it is permanent.

Award given: RM15,000.00.

40
 Zulimi b Lifat & Anor v Jos ak Alam
[2013] 2 PIR [23]
Awang Kerisnada Awang Mahmud scj 203

1 (9) Severe wasting of the muscles on the shoulder region

[72] This was stated by Dr Chen in his report. I have looked at all the case
authorities submitted by both parties.
5
Award given: RM10,000.00.

The second plaintiff, the deceased

[73] In respect of the second plaintiff, I find it reasonable and I allow it

10 entirely. In this full written judgment there are ample evidence to show
that the deceased was working and gainfully employed before the accident.
There are two witnesses PW4 and PW5 which confirmed that the deceased
was working as a welder at the Sarawak Land Shipyard Sdn Bhd at Kuala
Baram prior to the accident. The deceased gave RM800.00 to his mother every
15 month from part of his salary. This was testified by PW4 who was the sister
of the deceased.

[74] PW5 is the human resource assistant of the employment place of the
deceased. She testified that the deceased was gainfully employed and this
was also evidenced by the payroll documents of the deceased marked as
20 exh P58(1) to (6).

[75] From the six payrolls documents of the deceased, I can see that the
deceased was earning different salaries for different months, depending on his
extra or overtime hours. These salaries ranged from the lowest of RM1,312.00
per month to the highest of RM1,769.92 per month.
25
[76] In addition I have also considered the income tax EA forms of the
deceased marked as exh P84(1) to (5).

[77] In this regard I am prepared to agree with the learned plaintiffs’

counsel that a round figure of RM1,000.00 per month is a fair assessment.
30
In my assessment the learned plaintiffs’ counsel’s formula of calculating all
the deceased salary for six months which equals to RM9,103.00. And further
dividing it on an equal basis of six months would result in the amount of
RM1,517.00 per month. Then there is a deduction of ⅓ or one third for the
deceased’s living expenses which is RM505.60 per month. Then the salary of
35 RM1,517.00 would minus RM505.60 per month. This would finally result in
the amount of RM1,011.40 per month. Thus and therefore a round figure of
RM1,000.00 per month is a very reasonable assessment.

[78] Therefore the amount of RM1,000.00 is to be x 12 months x 16 years

which finally amount to RM192,000.00. This is the right multiplicand to be
40 adopted here.
204 Personal Injury Reports [2013] 2 PIR [23]

Pain and suffering for a limited time 1

[79] The deceased did not die immediately after the accident. The accident
happened on July 1, 2010 and the deceased was immediately brought to the
hospital. In fact from the time of the accident until July 2, 2012 at 12.50 a.m. 5
the deceased lived. The deceased died on July 2, 2012 at 12.50 a.m.

[80] I allow an award of RM10,000.00 for the pain that the deceased endured
for the five hours that he lived after the accident and before he died.

[81] As to the second plaintiff, since he was a pillion rider, I order and rule 10
that the defendant shall be 70% liable for his passing away and on the basis
of the counterclaim, I allow the counterclaim in parts and rule that the first
plaintiff is liable 30% for the second plaintiff’s accident.

[82] In the case of the second plaintiff, the defendant shall bear 100%
responsibility and liability and the amount of RM206,098.50. 15

[83] There is a counterclaim against the first plaintiff. On the counterclaim,

I allow it in parts and rule that the first plaintiff is liable to 30% towards the
misfortune of the second plaintiff.

[84] In addition I allow interest as prayed for. In the statement of claim for 20
both damages of special and general. Cost allowed on a basis of 70% and
to be taxed unless agreed otherwise for the first plaintiff’s counsel since the
liability borne by the defendant is 70%. This is for the first plaintiff.

[85] But a cost on a 70% basis to be given to the second plaintiff’s counsel
25
as for cost for the second plaintiff.

30

35

40