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Bibi Norishma Peruama
[2009] PILRU 20 v. Abu Khalid Mohd Parhi & Ors; Peruama Rahim pg 1
BIBI NORISHMA PERUAMA

v.
ABU KHALID MOHD PARHI & ORS; PERUAMA RAHIM
Sessions Court, Sri Aman

Nixon Kennedy Kumbong SJ
[Summons No: 53-15-2005]
6 April 2009
QUANTUM TABLE
1. Abrasion and laceration - Abrasion
2. Lower limb - Ankle
3. Lower limb - Femur
4. Lower limb - Foot
5. Lower limb - Tibia
6. Scar - Scarring
7. Skin - Skin grafting
Date of accident: 23 July 2004
Brief Description Of Plaintiff's Injuries
1. 9 cm × 5 cm degloving wound over the right medial malleolus with

a small area of the bone exposed and surrounded by abrasion
2. Closed displaced fracture of the proximal one third of the left femur
3. Closed undisplaced fracture of the right calcaneum
4. Closed fracture distal one third of the right tibia (unicortical

fracture)
Disabilities
1. Plastic deformity of the right fibula
2. Permanent scars
pg 2 v. Abu Khalid Mohd Parhi & Ors; Peruama Rahim [2009] PILRU 20
(a) 5 cm × 2 cm scar above the keloid
(b) 7 cm × 6 cm scar over the inner aspect of the right ankle
(c) 20 cm × 5 cm scar over the inner aspect of the right ankle
(d) Unsightly keloid over the medial aspect of the right ankle
3. Split skin grafting over the right medial malleolus
Plaintiff's Age
(a) As at date of accident: NA
(b) As at date of hearing: NA
Plaintiff's Occupation
Plaintiff's Earnings
Liability
100% against the first defendant; second and third defendants vicariously
liable; claim against third party dismissed with costs to be taxed unless agreed
Award
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 date of judgment.
(c) 8% per annum on total judgment sum from date of judgment until
date of settlement.
NOTE
1. 10% was deducted from the total general damages awarded, for
overlapping.
2. An appeal has been lodged by the defendants against the whole of

the decision of the Sessions Court. The appeal which was filed on 17
April 2009 is pending determination by the High Court, Kuching.
Case(s) referred to:

Abdul Rahman Mohd Mera v. Transnasional Express Sdn Bhd & Anor [2007] 1
MLRH 32; [2007] 7 MLJ 766; [2007] 10 CLJ 1 (refd)
Abraham v. Choo Jit Fung & Anor [1965] 1 MLRA 165; [1966] 1 MLJ 97 (refd)
Albert Beti & Anor v. Tiong King Hoo & Ors, Kuching Sessions Court Summons
No 53-109-2001-I (refd)
Chai Yee Chong v. Lew Thai [2004] 1 MLRA 195; [2004] 2 MLJ 465 (refd)
Chong Kam Siong v. Herman Baharuddin [1992] 4 MLRH 200; [1995] 2 CLJ 413
(refd)
Chu Kim Sing & Anor v. Abdul Razak Amin [1999] 2 MLRH 189[1999] 6 MLJ
433; [1999] 4 CLJ 448 ; [1999] 4 AMR 4198 (refd)
Hahn v. Conley (1971) 45 ALJR 631 (refd)
Heng Hock Hsien v. Md Mudanoran Md Mushaari Mustaza & Anor [2007] 1 PIR
29 (refd)
Hong Chee Fatt & Anor v. Chung Chee Hoong & Anor [2007] PILRU 12; [2008]
1 PIR 50 (refd)
Johnson Landan v. Buma George Labut & Anor [2007] PILRU 19; [2007] 1 PIR
45 (refd)
Jones v. Lawrence [1969] 3 All ER 267 (refd)
Koh Eng Yiap v. Lim Yew Yuh [2004] 6 Mallal's Digest (917) (refd)
Lee Ah Kau @ Lee Sin Fook & Anor v. Amran Sharudin [2007] PILRU 26;
[2008] 1 PIR 5 (refd)
Lo Kit Pin v. Fu Khet Nyuk (deseased) Liew Nyuk Jin & Anor [1999] 7 MLRH
209 (refd)
Master Mohammad Shafarin Samsudin v. Chang Nyat Lim & Anor [2007] 1 PIR
35 (refd)
Mat Jusoh Daud v. Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MELR 476;
[1982] 2 MLJ 71; [1982] CLJ 562 (refd)
Mawan Hasar @Asar & Anor v. Lee Beng Ho [2008] PILRU 52; [2009] 1 PIR 15
(refd)
Mohamad Khirul Mizan Shafie & Anor v. Yue Ah Kai [2002] 3 MLRH 42 (refd)
Mohamad Safuan Wasidin & Anor v. Mohd Ridhuan Ahmad (an infant) [1994] 4
MLRH 432; [1994] 2 MLJ 187 (refd)
Mohd Shah Reza Md Sahat v. Muhammad Safri Ibrahim [2006] 3 QLR 159 (refd)
PP v. Low Yong Ping [1961] 1 MLRH 818; [1961] 1 MLJ 306 (refd)
Palanisamy Sellapan & Anor v. Doniyel Nokman [2008] PILRU 76; [2008] 2 PIR
52 (refd)
Pengarah Institut Penyelidikan Perubatan & Anor v. Inthra Devi & Anor [2004] 6
Mallal's Digest (520) (refd)
Radzuan Harun v. Syarikat Pembekal Galakan Sdn Bhd & Anor [2007] 1 PIR 21
(refd)
Sam Wun Hoong v. Kader Ibramshah [1980] 1 MLRA 712; [1981] 1 MLJ 295
(refd)
Siti Nurhasfeezan Abdul Kadir v. Ahmad Helmy Abdul Rahman & Anor [2008] 1
PIR 48 (refd)
Symes v. Ling Ngan Ngieng [1966] 1 MLRH 305; [1966] 2 MLJ 149 (refd)
Tey Siew Goh v. Tay Tian Soo [1964] 1 MLRH 11 (refd)
Tham Yew Heng & Anor v. Chong Toh Cheng [1984] 1 MLRH 587; [1985] 1
MLJ 408; [1985] CLJ 878 (refd)
Voon Jan Choo v. Lee Chie Siang & Anor [2007] 2 MLRH 601; [2007] 7 MLJ 77;
[2007] 9 CLJ 242 (refd)
Wilson v. PP [1939] 1 MLRH 389; [1939] 1 MLJ 129 (refd)
Wong Li Fatt William (an infant) v. Haidawati Bolhen & Anor [1994] 4 MLRH
458; [1994] 2 MLJ 497 (refd)
Wong Poh Huat & Anor v. Thoo Wei Loong & Anor [2008] 1 PIR 29 (refd)
Legislation referred to:

Evidence Act 1950, s 101(1)
Highway Code, r 23
Counsel:
For the plaintiff: M/s Ang Ley Hoon Liew & Advocates
For the defendants: Maisarah Juhari
[Order accordingly.]
JUDGMENT
Nixon Kennedy Kumbong, SJ:
Introduction
[1] This is an action in negligence arising from a road traffic accident on 23

July 2004 at or about 3.30 pm along Jalan Datuk Godam Pusa between the
minor plaintiff Bibi Norishma Peruama and a motor vehicle QSG 1545
(hereinafter referred to as "the land cruiser").
[2] All the three defendants brought in the minor plaintiff's father as the third
party for indemnity. Both liability and quantum are disputed.
[3] The onus of proof of negligence lies on the plaintiff to prove on the balance
of probabilities that the first defendant had been negligent in causing the
accident to occur.
[4] The plaintiff called three witnesses as follows:
(a) PW1, Peruama Rahim, who is the plaintiff's father;
(b) PW2, Sergeant Guyut Satin, who was the investigating officer of
the accident and
(c) PW3, Dr Lee Woo Guan, who is an Orthopaedic surgeon at the

Kuching Specialist Hospital.
[5] The defendants called four witnesses as follows:
(a) Abdul Khalid Mohd Parhi, the first defendant; DW1
(b) Amit Sera, the assistant public health officer of Debak Health
Clinic; DW2
(c) Dr Kueh Nai Siong, plastic surgeon at Sarawak General Hospital;

DW3; and
(d) Uda Lukman, the assistant administrative officer of Sarawak

General Hospital. DW4
Documents tendered as exhibit are as follows:
(i) Bundle of pleadings - A

(ii) Bundle of agreed documents (agreed to authenticity and contents) -

B
(iii) Bundle of agreed documents (agreed to authenticity) - C
(iv) Bundle of disputed documents - bundle D
(v) Statement of agreed facts - bundle E
(vi) All documents tendered in bundle B
(vii) Third party's police report dated 23 July 2004 at p 2 bundle C -

exh D2
(viii) Sketch plan and key of sketch plan at pp 3 - 4 of bundle C exh P4

and P4(a), respectively
(ix) Kuching Specialist Hospital receipt dated 26 August 2004 at p 7

bundle C - exh P7
(x) Five pictures from the accident scene at p 3 bundle D - exhs P5(a) -
(g)
(xi) Medical report from the Kuching Specialist Hospital dated 24

August 2005 at pp 7-8 bundle D - exh P6
[6] Both the plaintiff's and the defendants' evidence do not dispute that:
(a) At all material times, the first defendant was the driver and the
second defendant was the owner of the land cruiser. The third
defendant was at all material times the employer of the first defendant.
(b) On 23 July 2004 at or about 3.30 pm. the plaintiff was a pedestrian
crossing from left to right of Jalan Datuk Godam Pusa, in the
direction of Pusa Bazaar, when she was knocked by the land cruiser
driven by the first defendant, as the servant, agent and/or authorised
driver of the second and third defendants, on the right lane of the said
road.
(c) The minor plaintiff was 2 years 9 months old at the time of the
accident.
(d) Prior to the collision, the route taken by the land cruiser was from
Pusa Bazaar, in the direction of Simpang Jalan Besar Kuching/Serian.
(e) The stretch of road where the collision occurred is straight.
(f) At the material time of the accident, the weather was fine and
visibility was good.
(g) The collision took place on the left lane in the direction of Simpang
Jalan Besar Kuching/Serian.
(h) The point of impact is as marked "X" as shown in exh P4.
(i) The speed limit along that stretch of road where the collision
occurred is 30 km/h.
(j) The plaintiff was admitted to the Sarawak General Hospital for
injuries sustained in the said collision which injuries and treatment
thereof are as stated in the discharge summary dated 2 August 2004
and 11 August 2004, the medical report prepared by Dr Azani Hasan
and the To Whom it May Concern letter dated 9 August 2004.
Brief Facts
[7] PW1's evidence on how the accident happened was that he was driving
home from Sarikei that afternoon. After reaching home, he parked and got
down from his car, he then saw the land cruiser coming fast from the direction
of Pusa knocking his daughter, the plaintiff.
[8] DW1's explanation was that he was coming from Pusa Health Clinic,
going in the direction of Debak. Suddenly, the plaintiff ran across the road and
DW1 was not in time to avoid colliding into the plaintiff.
[9] As a result of the said collision, the plaintiff has suffered several injuries
such as:
1. Closed fracture of the proximal one third of the left femur which was
displaced.
2. Closed fracture of the distal one third of the right tibia (unicortical fracture)
with plastic deformity of the right fibula.
3. Closed undisplaced fracture of the right calcaneum.
4. Degloving wound over the right medial malleolus measuring 9 cm × 5 cm

with small area of the bone exposed.
5. Wound was surrounded by abrasion.
Findings
A. Liability
[10] In the instant case, PW2, the IO of the case confirmed that from the
sketch plan (exh - P4), point "E" to "X" were brake marks. Point "F" was the
place where the plaintiff was dragged after the point of impact marked "X".
[11] The evidence of DW1, in his statement said that prior to the accident he
was driving 50 km/h and upon seeing the plaintiff's father wanting to cross the
road he had reduced his speed to 30 km/h when suddenly the plaintiff ran to
her father without looking left and right of the road and DW1 was not in time
to apply his brakes and knocked the plaintiff.
[12] In the instant case, the plaintiff was running across the road from DW1's
right side of the road to the left side of the road. It is highly improbable that
DW1 could not see the plaintiff if DW1 had been driving at the speed of 30
km/h or even 20 km/h as alleged by DW1 in his statement and re-
examination, respectively. In fact, DW1 in his cross-examination said that
prior to the impact he was driving at about 50 km/h. In the re-examination,
DW1 said that he was driving at the speed of 20 km/h when he applied his
brakes and it was started at point "KM" as in the sketch plan.
[13] The evidence of DW1 is inconsistent and therefore should be treated with
caution, as his evidence may not be reliable.
[14] PW2 has also said in his evidence that DW1 had informed PW2 that
DW1 first noticed the plaintiff suddenly dashing out to the road when DW1
was at the road bend.
[15] PW2 said that the said bend was not shown in the sketch plan and it was
at the direction from Pusa to Betong.
[16] According to PW2 in his cross-examination, PW2 said that the distance
from the end part of the bend to the point marked "E" (the beginning of the
tyre mark) was approximately more or less 100 meters.
[17] PW2 also agreed to the question put by the learned federal counsel that
DW1 would be able to see point marked "A" after the end of the bend.
[18] if that be the case, from my considered view there is no reason why DW1
was not able to see the plaintiff who was at point "J" and even if the plaintiff
had ran towards her father who was at the other side of the road, there is no
reason why DW1 was not able to avoid the plaintiff even if the girl suddenly
ran across the road because the defendant had ample time to take the
necessary action to apply his brakes and to stop his vehicle UNLESS DW1
was driving very fast at that point of time preventing him to do so at the spur
of moment.
[19] It is not disputed that the speed limit along that stretch of road where the
collision occurred is 30 km/h. The first defendant admitted in the cross-
examination that he used the said road because he is from the Pusa area. Thus
the first defendant should have anticipated that he could be put on an
emergency situation at any time while passing that area. And he should have
put himself in a position where he could halt the said vehicle in the event of
such an emergency situation occurring.
[20] But from the evidence adduced, the first defendant appeared to have failed
to meet such obligations. If he had been travelling at a speed within his

control, then on seeing the girl about 100 feet away, such distance in my view
would have given him sufficient time to take the necessary emergency
precautions so as to be able to stop the said car before knocking down the
infant plaintiff.
[21] But he could not do so and in my opinion he had failed to observe r 23 of

the Highway Code LN 165/1959 of the Road Transport Rules Part II which
provides that: A good driver adjusts his speed to road conditions. You should
reduce speed to suit road conditions so that you can stop in any emergency
without skidding or losing control. A good driver automatically reduces his
speed when entering a built up area, when approaching a school or a bus with
children alighting or boarding, on narrow winding roads, approaching children
who are playing, approaching a bend, brow of a hill, or any other obstruction
that limits his view.
[22] See: Tey Siew Goh v. Tay Tian Soo [1964] 1 MLRH 11
[23] Even if the plaintiff suddenly dashed out to the other side of the road (ie to
the opposite side of the road to DW1's left side), the defendant still has time to
take reasonable precautions since the plaintiff was crossing from DW1's right
side of the road to the left side and DW1 would still be able to see the plaintiff.
[24] The first defendant also failed to warn the girl of his presence either by
sounding the horn or flashing the headlights of the said vehicle. Obviously the
speed was too high for him to be able to make such moves. It is therefore my
finding on the balance of probabilities that the first defendant was not in
reasonable control of the said car at the speed he was driving at the material
time.
[25] Based on the foregoing findings, I am therefore of the view that on the
balance of probabilities, the first defendant must have been travelling at a
speed of more than 50 km/h at the material time.
[26] In the instant case DW1 was driving a land cruiser whereby the seat was
high enough for a driver to see what is in front and ahead of him.
[27] In PP v. Low Yong Ping [1961] 1 MLRH 818; [1961] 1 MLJ 306, in a case
of dangerous driving of a motor lorry the court had this to say, "... How far
can the driver of motor lorry BD 5751 seated in his cab at that eye level, see
the road ahead of him, if he was keeping a proper look out? These and many
other relevant factors must be taken into account."
[28] In the instant case, PW2 testified that the tyre marks caused by the land
cruiser measured 11.60 metres ("E"-"X"), and PW2 also agreed with the
suggestion by the learned federal counsel that from point "E" to "X" were very
long brake marks. PW2 also said that point "E" was the point where the brake
was applied. However, DW1 denied the tyre marked before the impact.
[29] In Wilson v. PP [1939] 1 MLRH 389; [1939] 1 MLJ 129, Murray-Aynsley

J said: It appears to me once there was material on which the court could find
that there was negligence, that is a question of fact whether the appellant had
produced evidence to rebut this presumption. The magistrate had before him
the evidence of wheel marks, which he was entitled to assume were those of
appellant's vehicle and the evidence of appellant himself. On this I think he
was entitled to arrive at the conclusion that the appellant was guilty of
negligence.
[30] Looking at the skid/scratch marks at point "E" to "X", I have no doubt
that DW1 had been at fault in handling his vehicle ie DW1 was in fact driving
fast along an open country road.
[31] In PP v. Low Yong Ping [1961] 1 MLRH 818; [1961] 1 MLJ 306, Ong, J
said, "The brake marks speak louder than words of the speed at which the
defendant was driving. A reference to p 43 of Bingham's Motor Claims Cases
(3rd edn) will be found illuminating."
[32] Further, PW2, the investigating officer who was an impartial witness,
after having investigated the case came to the conclusion that DW1 was at
fault in causing the accident to occur. DW1 was charged under r 10 of the
Road Traffic Rules 1959 for failing to exercise proper control over the vehicle.
The compound fee of RM300.00 was paid by DW1.
[33] In the High Court case of Lo Kit Pin v. Fu Khet Nyuk (deseased) Liew
Nyuk Jin & Anor [1999] 7 MLRH 209, Richard Malanjum J (as he then was)
held that: As regards the payment of the compound fine of RM300.00 by the
driver of ST 1955E no doubt such a point may not be taken as conclusive
proof of admission of liability. However there is nothing to prevent the
plaintiffs from relying on such a fact as part of the evidence in establishing
their case. And the payment of the fine upon the offence being compounded
only goes to strengthen the plaintiffs' cases. Hence, I admit such fact in favour
of the plaintiffs' case."
Contributory Negligence Of Minor Plaintiff
[34] The degree of care attached to a child should be different from that of an
adult. That degree of care must be proportionate to the age of the child. The
younger the child is, the lesser the degree of care attributable to the child.
[35] It was clearly held in the case of Mohamad Safuan Wasidin & Anor v.
Mohd Ridhuan Ahmad (an infant) [1994] 4 MLRH 432; [1994] 2 MLJ 187,
Abdul Malik Ishak JC, held: The degree of care attached to a child should be
different from that of an adult. That degree of care must be proportionate to
the age of the child. The younger the child is, the lesser the degree of care
attributable to the child.
[36] In Abraham v. Choo Jit Fung & Anor [1965] 1 MLRA 165; [1966] 1 MLJ
97, the Federal Court held that a 7 years 10 months old girl who was crossing
the road when the collision occurred was not liable in contributory negligence.
Wee Chong Jin CJ said: Now the trial judge on this aspect of the matter found
that there was nothing irregular or unsatisfactory in the manner the plaintiff
crossed this road.
[37] He continued: She acted as a normal child of her age would have done
under the circumstances. Children are children and they would not be
expected to act with the same degree of caution as an adult person. Their
judgment of things cannot be as high as that of an adult individual - could the
plaintiff under the circumstances be said to have acted unreasonably? In my
opinion she has clearly not done so. I accept the conclusion arrived at by the
trial judge and his view that a child of her age in the circumstances of this
collision should not be held in any degree or in any way to blame for the
accident. In the circumstances I would dismiss the appeal so far as liability is
concerned.
[38] In Symes v. Ling Ngan Ngieng [1966] 1 MLRH 305; [1966] 2 MLJ 149, an
infant who was left alone in a car by her mother got out of the car and crossed
the road in the direction the mother went. After she had crossed the middle of
the road she was knocked down by the defendant's car. Gill J in finding the
defendant totally liable said: if the defendant had been keeping a proper look
out he could not have failed to see the child walking across the road. Even
assuming that he first saw the child when she was near the centre line, this
should have put him on his guard to slow down. He has said that the child
went on moving and that it was the child who hit his car. That may well be so,
but the truth would appear to be that he took no steps to avoid running into
the child by sounding his horn or reducing the speed. All the indications are
that because he was not keeping a proper look out he failed to see the child
until it was too late to avoid hitting her. From the nature of the injury on the
child it would seem clear that as he was swerving to the left the door handle of
his car struck the child in the face. In the circumstances I find as a fact that the
defendant was entirely to blame for the accident and hold him liable in
damages.
[39] The case of Symes v. Ling Ngan Ngieng [1966] 1 MLRH 305; [1966] 2
MLJ 149 also established the principle that the negligence of the person in
charge of the child is no answer to the claim made by the plaintiff against the
defendant.
[40] In Tham Yew Heng & Anor v. Chong Toh Cheng [1984] 1 MLRH 587;
[1985] 1 MLJ 408; [1985] CLJ 878 Thean J refused to hold a 9 year old infant
contributory negligent when he said: I think that the first plaintiff must have
seen the defendant's car, but a boy at the age of nine years could hardly be
expected to judge accurately the speed and distance of an oncoming car. He
cannot be expected to exercise the same degree of care or caution as an adult.
[41] In Jones v. Lawrence [1969] 3 All ER 267, an infant plaintiff, a boy aged 7
years and 3 months, ran out from behind a parked van across a road,
apparently without looking. There was a collision between the infant plaintiff
and the defendant on his motorcycle. The court held that:...the infant plaintiff's
conduct was only that to be expected of a 7 year old child and could not
amount to contributory negligence.
[42] In Wong Li Fatt William (an infant) v. Haida Wati Bolhen & Anor [1994]
2 MLJ 497, Richard Malanjum J in awarding damages to the plaintiff held
that: (1) The first defendant used that road daily and knew that the area was
inhabited. Therefore, she should have put herself in a position where she could
have halted the car in the event of an emergency. Furthermore, if she had kept
a proper look out and had been travelling at a speed within her control, she
would have been able to avoid knocking down the infant plaintiff. As such, she
had failed to observe s 23 of the Highway Code. The first defendant also failed
to warn the infant plaintiff of her presence either by sounding the horn or
flashing the headlights of the car....(3) No contributory negligence or blame
was attributable to the infant plaintiff. As he had been only 2 years and 11
months old at the time, no duty to take care of his own safety was imposed
upon him. The defendants had also not proved that the infant plaintiff had
shown a culpable want of care for his own safety.
[43] for the aforesaid reasons, the plaintiff who was 2 years and 9 months old
at the time of the accident is therefore not guilty of contributory negligence.
Contributory Negligence Of Third Party
[44] The defendants are also alleging that the collision was caused and/or
contributed by the minor plaintiff's father, the third party.
[45] In the instant case, PW1 has said in the cross-examination that his
daughter was playing inside the shop marked "A" as shown in the sketch plan.
PW1 sid that the shop was taken care of by his mother in law.
[46] The plaintiff was at the material time under the care and supervision of
her grandparents. It was held in the case of Hahn v. Conley (1971) 45 ALJR
631 that a grandfather did not owe a duty of care to his granddaughter, aged
three, whom he had seen was unaccompanied and was attempting to cross
over a road, when she was struck down by a passing motorist.
[47] In the instant case, the evidence from PW1 clearly showed that he just
reached home from Sarikei that afternoon. No evidence to show that he knew
that his daughter was at the roadside and suddenly crossed the road. This can
be seen from the evidence of PW1 himself when he agreed to the question put
by the learned federal counsel that he did not see his daughter being dragged
for four meters to the front as he was still in the car at that time.
[48] PW1 also agreed to the question put by the learned federal counsel that
the distance between the plaintiff and PW1 was far away. Therefore, at this
juncture, I do not see that PW1 has contributed to the causing of the accident.
The burden of proving that PW1/third party is negligent lies on the
defendants, and the defendants have not proven the same on a balance of
probabilities.
[49]Section 101(1) of the Evidence Act 1950 states that: Whoever desires any
court to give judgment as to any legal right or liability, dependent on the
existence of facts which he asserts, must prove that those facts exist.
[50] In our present case, neither grandparents of the minor plaintiff was a party
to this action, nor was there any evidence suggested by the defendants that the
grandparents had witnessed the collision. The defendants' main argument was
that PW1 caused and/or contributed to the collision, and thus PW1 was
brought in as the third party cannot stand and shall fail.
Conclusion On The Issue Of Liability
[51] On the basis of my findings on the particulars of negligence, I make a

finding of total liability against the first defendant and whereas the second and
third defendants are vicariously liable for the accident. I also dismissed the
action against the third party with costs to be taxed unless agreed.
B. Quantum
General Damages
[52] In the accident, the plaintiff suffered the following injuries (see: Bundle B
p 5):
1. Closed fracture of the proximal one third of the left femur which was
displaced.
2. Closed fracture of the distal one third of the right tibia (unicortical fracture)
with plastic deformity of the right fibula.
3. Closed undisplaced fracture of the right calcaneum
4. Degloving wound over the right medial malleolus measuring 9 cm × 5 cm

with a small area of the bone exposed.
5. Wound was surrounded by abrasion.
Closed fracture of the proximal one third of the left femur: RM25,000.00
[53] In the instant case hip spica was done on the plaintiff on 24 July 2000.
[54] In Heng Hock Hsien v. Md Mudanoran Md Mushaari Mustaza & Anor

[2007] 1 PIR 29 p 190, Sessions Court Kuantan, His Honour Ahmad Zamzani
Zain (refd)j awarded RM35,000.00 for closed fracture midshaft of the left
femur;
[55] In Johnson Landan v. Buma George Labut & Anor [2007] PILRU 19;
[2007] 1 PIR 45 p 318, Sessions Court, Kuching, Her Honour Puan Supang
Lian (refd)j awarded RM30,000.00 for closed fracture of the left femur with
permanent limping gait;
[56] In Radzuan Harun v. Syarikat Pembekal Galakan Sdn Bhd & Anor [2007] 1
PIR 21 p 163, Sessions Court, Kuantan, Her Honour Puan Mariana Yahya
(refd)j awarded RM30,000.00 for closed fracture midshaft of the right femur
(with antalgic gait, sensory deficit and weakness in muscle power);
[57] In Mohd Shah Reza Md Sahat v. Muhammad Safri Ibrahim [2006] 3 QLR
159, Her Honour Puan Rosbiahanin Arifin (refd)j awarded RM25,000.00 for
closed fracture of right femur;
[58] In Mohamad Khirul Mizan Shafie & Anor v. Yue Ah Kai [2002] 3 MLRH
42, the court awarded RM40,000.00 for a full left fracture of the femur.
[59] In the instant case, the plaintiff is asking for RM35,000.00 for the above
injury. However, in the instant case, there was no evidence that the plaintiff
was limping. For the reasons above, I award RM25,000.00 which is fair and
justifiable with what the plaintiff is suffering.
Closed fracture of the distal one third of the right tibia (unicortical fracture):
RM20,000.00
[60] In the instant case, closed manual reduction and backslab of the right tibia
was done on 24 July 2000.
(i) In Jescika Patrick & Anor v. Lai Foo San & Anor [2008] PILRU 38;
[2008] 1 PIR 53 RM20,000.00 for closed fracture of the right tibia.
(ii) Teoh Seng Guan v. Wan Baharudin Wan Yusop & Anor [2007] 1
PIR 52, the court awarded RM39,000.00 for closed comminuted
fracture upper end of the left tibia and closed fracture of the neck of
the left fibula.
(iii) In Suriyati Takril v. Mohan Govindasamy & Anor [2000] 4 MLRH

1; [2001] 2 MLJ 275; [2001] 2 CLJ 101, the court awarded
RM37,000.00 for full right tibia fracture
[61] In the instant case, I have taken into consideration there was no evidence
that the plaintiff was limping, I therefore award RM20,000.00 for the above
injury.
Closed undisplaced fracture of the right calcaneum: RM20,000.00
[62] In the instant case, PW3 explained that compound fracture means that
there were external wounds communicating with the fracture inside.
[63] In Abdul Rahman Mohd Mera v. Transnasional Express Sdn Bhd & Anor
[2007] 1 MLRH 32; [2007] 7 MLJ 766; [2007] 10 CLJ 1, the court awarded
RM20,000.00 for fracture of the calcaneum.
[64] The defendants have also conceded with the amount, though it was
suggested that a 20% deduction should be made, as there was an element of
overlapping. However, with respect, I decline to agree and I shall allow full
award of RM20,000.00 for such injury.
Degloving wound over the right medial malleolus measuring 9 cm × 5 cm

with a small area of the bone exposed: RM18,000.00 and skin grafting:
RM15,000.00
[65] The plaintiff underwent debridement of the wound over the medial
malleolus. Split skin graft was done on 2 August 2004 to cover her wound.
Skin was harvested from her right thigh.
[66] During her follow-up at the orthopaedic specialist clinic on 9 August

2004, split skin graft over the right medial malleolus showed signs of infection
and there was a pressure sore over the distal part of the hip spica, hence she
was re-admitted for wound dressing and antibiotic as well as to trim her hip
spica.
[67] According to PW3, who reviewed the plaintiff in year 2005, the plaintiff
has a huge, unsightly keloid over medial aspect of her right ankle following the
degloving injury and compound fracture of right calcaneum
[68] In Koh Eng Yiap v. Lim Yew Yuh [2004] 6 Mallal's Digest (917),
RM20,000.00 was awarded for severe degloving wound and RM20,000.00 for
skin grafting.
[69] In Hong Chee Fatt & Anor v. Chung Chee Hoong & Anor [2007] PILRU
12; [2008] 1 PIR 50, RM15,000.00 was awarded for degloving injury,
RM20,000 for skin grafting.
[70] In Siti Nurhasfeezan Abdul Kadir v. Ahmad Helmy Abdul Rahman & Anor
[2008] 1 PIR 48, the court awarded RM10,000.00 for degloving injury to the
right fourth toe and amputation of the right fourth and fifth toe.
[71] In Palanisamy Sellapan & Anor v. Doniyel Nokman [2008] PILRU 76;
[2008] 2 PIR 52, the court has made an award of RM8,000.00 for degloving
injury and exposed tibia and fibula.
[72] Skin grafting is necessary to cover back the wound and skin graft is
harvested from the thigh. Split grafting was done on 2 August 2004.
[73] In Lee Ah Kau @ Lee Sin Fook & Anor v. Amran Sharudin [2007] PILRU
26; [2008] 1 PIR 5 where an award of RM15,000.00 was made for skin
grafting.
[74] In Wong Poh Huat & Anor v. Thoo Wei Loong & Anor [2008] 1 PIR 29,
where an award of RM20,000.00 was made for skin grafting.
[75] In Mawan Hasar @Asar & Anor v. Lee Beng Ho [2008] PILRU 52; [2009]
1 PIR 15, the court awarded RM15,000.00 for split skin grafting on the right
arm.
[76] Therefore, for the above said reason, for skin grafting, the reasonable
award is RM15,000.00.
[77] for the above skin grafting, the reasonable award is RM15,000.00.
[78] In the instant case I shall award, RM18,000.00 for degloving wound over
the right medial malleolus and RM15,000.00 for skin grafting.
Wound was surrounded by abrasion: RM1,500.00
[79] Though it was not pleaded in the pleadings by the plaintiff damages for
wound, guided with the case of Sam Wun Hoong v. Kader Ibramshah [1980] 1
MLRA 712; [1981] 1 MLJ 295 at p 296, Mohamed Azmi J (as he then was)
summarised what is claimable as damages for personal injuries as follows: In
an action for personal injuries, there are two classes for damages which have
to be considered - special damages which has to be specifically pleaded and
general damages which need not be specifically pleaded."
[80] Therefore, at this juncture, I do not see any reason why I cannot consider
the award for wound and scar as claimed by the plaintiff though it was not
specifically pleaded in the claim.
(i) Ng Hoon Kim an infant (suing by next friend) v. Hong Wei Huang &
Anor (suit no 53-150 of 2001), the court awarded RM1,000.00 for
multiple abrasion wound.
(ii) Baharuddin Sulong & Anor v. Hiew Chong Choo [2007] PILRU 6;
[2008] 1 PIR 40 RM5,000.00 for multiple abrasion wounds over both
hands and legs.
(iii) Mohd Habibullah Awang v. Lim Lee Seng Trading (M) Sdn Bhd &
Anor [2007] 1 PIR 48 RM3,000.00 for multiple abrasion wounds.
(iv) Mohd Saiful Ain Atan v. Ng Siew Eng [2008] PILRU 64; [2008] 2
PIR 38, the court awarded RM2,500.00 for multiple abrasions and
lacerations.
[81] for the aforesaid reasons I shall award RM1,500.00 for the above injury
that the plaintiff has suffered.
(a) Scarring: RM25,000.00
[82] PW1 in his evidence had said that the plaintiff is suffering from scarring.
There is a huge scar over the right ankle and it is due to the skin harvested
from her own right thigh.
[83] Dr Oh Woo Guan @ Lee Woo Guan (PW3) in his evidence had said as
follows: Keloid is an unsightly scar which grows beyond it's boundary. This
patient suffered scarring on her body mainly at the inner aspect of the right
ankle. The scar was measured 20 cm × 5 cm. There was another huge scar
which measure 5 cm × 2 cm just above the keloid. There was another huge
scar measuring 6 cm × 7 cm at the inner aspect of right thigh.
(i) Hong Chee Fatt & Anor v. Chung Chee Hoong & Anor [2007]
PILRU 12; [2008] 1 PIR 50 RM30,000.00 for scars (7 cm vertical scar
over the anterolateral aspect of the right ankle, 20 cm × 10 cm scar
over the right thigh, 22 cm × 7 cm skin graft scar over anterior aspect
of the right ankle)
(ii) Sadan Pendek v. Koperasi Kenderaan Pahang Timur Berhad & Anor
[2007] 1 PIR 24 RM20,000.00 for permanent scars
(iii) Chu Kim Sing & Anor v. Abdul Razak Amin [1999] 2 MLRH
189[1999] 6 MLJ 433; [1999] 4 CLJ 448 ; [1999] 4 AMR 4198
RM15,800.00 for two operative scars
(iv) Er Siew Keng v. Eng Thiang Lai [2004] 6 Mallal's Digest (1525)
RM14,000.00 for scars
(v) Rubiah Anuar v. Lim Sang [1996] 2 MLRH 166 RM10,000.00 for
scars, on the basis of the three major scars
[84] In respect of case authorities from Singapore that were decided more than
10 years ago, appropriate adjustments are to be made to keep up with the
times.
[85] See: Chu Kim Sing & Anor v. Abdul Razak Amin [1999] 2 MLRH
189[1999] 6 MLJ 433; [1999] 4 CLJ 448 ; [1999] 4 AMR 4198
[86] In the instant case, PW3 further said that the scars easily can be seen on
the patient's leg and this is a permanent scar and may grow bigger as she
grows. PW3 also said that the plaintiff hasn't recovered from the
hypersensitive scar she got from the injury and the chance of recovery is quite
slim and she needs to be referred to the plastic surgeon for some form of
reconstruction.
[87] For the above said reasons, I am of the view that the plaintiff shall be
awarded RM25,000.00 for the scarring.
Conclusion for pain and sufferings on general damages:

Special Damages
[88] Hospitalisation and other relevant reports and searches - RM687.00 PW3
testified that as a result of his specialist examination of the plaintiff's injuries,
exh P7 was issued by the Kuching Specialist Hospital. The said bill which is
amounting to RM635.00 has been paid. Exhibit P8 is the receipt issued by the
Kuching Specialist Hospital.
[89] The costs of police documents (RM2.00), medical report from Sarawak
General Hospital (RM40.00) and JPJ extract (RM10.00) is agreed at
RM52.00.
[90] In the circumstances, the sum of RM687.00 is to be awarded to the

plaintiff for this item of claim.
Cost of transportation for family to visit plaintiff during the period of

hospitalisation - RM2,600.00
[91] PW1 testified that his father, brothers and sisters went to visit the plaintiff
at Sarawak General Hospital once a day throughout both the minor plaintiff's
admission from 24 July 2004 to 2 August 2004 and 9 August 2004 to 11
August 2004. They used either their own car or van sewa to visit the minor
plaintiff. For one round trip van sewa, it would cost RM60.00 per person. If
they were using their own car, it would cost about RM200.00 return.
[92] In the case of Mat Jusoh Daud v. Syarikat Jaya Seberang Takir Sdn Bhd
[1982] 2 MLJ 71 the court held that although there is no evidence to show
whether members of the plaintiff's family made trips to see him in the hospital,
the court will allow a certain sum for travelling expenses having regard to the
custom and concern of the people in this country particularly rural folks
towards their sick relatives.
[93] It was submitted by the learned counsel for the plaintiff that for 13 days,
the cost of transportation incurred by the family members to visit the minor
plaintiff at Sarawak General Hospital is RM200.00 × 13 = RM2,600.00, and
the learned federal counsel for the defendants had submitted that the
defendants have no objection to the amount claimed of RM2,600.00 and I am
not hesitating to award it.
Cost of services of family members in looking after the plaintiff at RM350.00

per month for 4 months - RM1,400.00
[94] PW1 testified that his wife looked after the plaintiff at Sarawak General
Hospital throughout the hospitalisation. After her discharge, she was required
to be looked after as well.
[95] In the case of Wong Li Fatt William (an infant) v. Haidawati Bolhen & Anor
[1994] 4 MLRH 458; [1994] 2 MLJ 497, the court awarded the sum of
RM260.00 per month for 12 months and subsequently, RM300.00 per month
until the date of judgment for services rendered by the infant plaintiff's mother
in looking after him, taking into account the fact that she would still have had
to take care of him even if he had not been injured.
[96] Though the plaintiff even without the incident of the accident, the said
plaintiff still requires constant care and attention. However, the fact that the
plaintiff is suffering from the pain as a result of the accident, would require
more care and attention from the plaintiff's parents and it is reasonable.
[97] In the instant case, the medical report at pp 5-6 Bundle B (agreed to
authenticity and contents), prepared by Dr Azani Hasan said that at the three
months follow-up (10 November 2004) the plaintiff was able to walk without
pain and the wound over the medial malleolus had healed with keloid
formation (scar), no obvious shortening was noted and she was back to normal
life with a scar over the medial malleolus. It has to be noted that the plaintiff
was first admitted to the hospital on 23 July 2004.
[98] However, in the instant case, I am of the view that RM350.00 per month
is reasonable for caring and nursing of the plaintiff during the period of PW2's
incapacity. This is also in line with the current trend of hiring an Indonesian
maid in Kuching which is in the region of RM250.00 - RM350.00.
[99] Further, PW2 was not in a vegetative or paralysed state which may
require nursing care and attendance for the rest of her life.
[100] In Voon Jan Choo v. Lee Chie Siang & Anor [2007] 2 MLRH 601; [2007]
7 MLJ 77; [2007] 9 CLJ 242, Hamid Sultan Abu Backer JC, agreed with the
decision of the learned Sessions Court judge in awarding RM350.00 for costs
of care. the learned Sessions Court judge was not wrong in adopting the figure
of RM350.00 under this head.
[101] In Master Mohammad Shafarin Samsudin v. Chang Nyat Lim & Anor
[2007] 1 PIR 35, Her Honour Puan Supang Lian (refd)j awarded RM350.00
per month being costs of care.
[102] In Albert Beti & Anor v. Tiong King Hoo & Ors, Kuching Sessions
Court Summons No 53-109-2001-I, Her Honour Puan Yew Jen Kie (refd)j (as
she then was) awarded RM350.00 per month being costs of care.
[103] Therefore, the fair award for the pre-trial cost of care for the plaintiff
would be RM350.00 per month for four months = RM1,400.00
Cost of transportation and all its incidental expenses for plaintiff to follow-up -
RM460.00
[104] PW1 testified that the minor plaintiff attended follow-ups three times at
the Pusa Health Clinic and twice at the Orthopaedic Specialist Clinic at
Sarawak General Hospital. He further testified that he drove and brought her
for follow-ups. From his house to Pusa Health Clinic, it would cost about
RM20.00 per round trip, whereas a round trip to Sarawak General Hospital
from his house would cost about RM200.00.
[105] for three times follow-up at Pusa Health Clinic, the transportation
expenses incurred would be RM60.00.
[106] For two times follow-up at the Orthopaedic Specialist Clinic at Sarawak
General Hospital, the transportation expenses incurred would be RM400.00.
[107] Total amount allowed is therefore, RM460.00. The learned federal

counsel for the defendants had also submitted that the defendants have no
objection to the amount claimed of RM460.00.
Cost of future surgery - RM10,000.00
[108] PW3 testified that the plaintiff needs an operation for excision of keloid
and skin graft to improve the cosmetics. The cost of surgery is estimated at
RM10,000. It is the defendants' contention that the same surgery can be done
in Sarawak General Hospital. However, DW3 agreed during cross-
examination that such surgery in respect of road traffic accident patients are
not on the priority list of Sarawak General Hospital. Even in the re-
examination, DW3 said that excision of keloid and skin graft is not an urgent
case.
[109] In Chong Kam Siong v. Herman Baharuddin [1992] 4 MLRH 200; [1995]
2 CLJ 413, the High Court held that, "... any ordinary citizen of this country
has a right to choose medical treatment for his injuries and illness from
whoever and from wherever, and that the plaintiff is entitled to seek medical
treatment other than in a government hospital."
[110] PW3 in his evidence said as follows: Until right now is three years after
the road traffic accident. She hasn't recovered from the hypersensitive scar she
got from this injury. The chance of recovery is quite slim. There might be
room for recovery. She may need to be referred to the plastic surgeon for some
form of reconstruction. In another words she may need the surgery. The
surgery will be done by the plastic surgeon and they need to construct the
inner aspect of the right ankle with flaps and skin graft. The costs will be very
much different depending on the plastic reconstruction. If the plastic surgeon
need to do a micro vascular flap transfer it could cost up to RM30,000.00 to
RM40,000.00. If it is just localise flap and skin graft it can be about
RM10,000.00.
[111] PW1 testified that he would want to have the surgery done in Kuching
Specialist Hospital. The evidence of PW3 clearly shows that the plaintiff needs
urgent attention and surgery.
[112] In Chai Yee Chong v. Lew Thai [2004] 1 MLRA 195; [2004] 2 MLJ 465,
the Court of Appeal said that: To summarise my view on the issue, every
person has a right to seek medical treatment at a hospital of his choice be it at
a government hospital or at a private hospital. But, when it comes to awarding
damages for such treatment, if the treatment is sought at a government
hospital, the full amount expended and paid by the person should be awarded.
But, if he seeks treatment at a private hospital, he has to prove, first that he is
justified to seek treatment at a private hospital and, secondly, the amount
incurred is reasonable. Regarding the first hurdle that he has to cross:
(a) He must prove that that particular treatment is not available at the
government hospital either due to the unavailability of the necessary
equipment or qualified doctors or other sufficient reasons; or
(b) He must prove that though the treatment is available at a general

hospital, it is not available within a reasonable period considering the
urgency of the treatment. This may be due to the congestion at the
government hospital or for other sufficient reasons; or
(c) He must prove that that the treatment at the government hospital
though available, is grossly inadequate. This may be due to lack of
trained doctors in that particular field or for some other good reasons.
As pointed out by RK Nathan JC in Chong Chee Kong, supra with
whom I agree, we are concerned with treatment, not accommodation.
[113] If the court is not satisfied that the plaintiff is justified to seek treatment
at a private hospital then, depending on the facts and the circumstances of
each case, the court should either dismiss the claim altogether as was done by
the Supreme Court in Pengarah Institut Penyelidikan Perubatan & Anor v. Inthra
Devi & Anor [2004] 6 Mallal's Digest (520), supra, and by this court in Hj
Ariffin Hj Ismail (supra) or award an amount not exceeding one third of the
expenses as was done by the Supreme Court in Tang Kia Bak v. Mooi Kim
Ming & Anor [2004] 6 Mallal's Digest (1595), supra. It must be noted that the
one third is nowhere fixed by any written law. It is a matter of practice. If it is
shown that in a particular case, even one third is excessive, considering the
expenses that otherwise would have been incurred in a government hospital,
an amount less than one third may be awarded. Now, assuming that the
plaintiff has crossed the first hurdle and the court is satisfied that the plaintiff is
justified in seeking medical treatment at a private hospital, the plaintiff must
prove that the expenses incurred and the amount claimed is reasonable taking
into consideration normal charges at other local private hospitals. The court
may award what it considers to be a reasonable amount which may even be
the full amount claimed.
[114] In the instant case, I am of the view that the plaintiff is entitled to seek
treatment in a private hospital as requested by PW1. The evidence of DW3
clearly showed that although the government hospital (SGH) provides the
same surgery as in the private hospital, the facts show that with regards to
those who were involved in a road traffic accident, DW3 has said that the
surgery for excision of keloid and skin graft is not a top priority on the list of
the Sarawak General Hospital (SGH).
[115] On the other hand, the evidence of PW3 shows that the plaintiff has not
recovered from the hypersensitive scar she got from the injury. This clearly
shows that the injury is urgent and required attention. PW3 also said that the
scar can be easily seen on the patient's leg. It is a permanent scar and may
grow bigger as she grows. PW3 also said that the plaintiff experienced frequent
discomfort at her foot when she is walking on sandals. That is because the
pressure of the shoe wear may cause discomfort in her right foot.
[116] The plaintiff has also chosen the minimum costs ie RM10,000.00
(localise flap and skin graft) to undergo such surgery though PW3 was given
various types of surgeries and costs that is possible for the plaintiff. The costs is
very much different depending on the plastic reconstruction. This can be seen
if it is for micro vascular flap transfer it could cost up to RM30,000.00 to
RM40,000.00.
[117] In the circumstances, I allow the sum of RM10,000.00 being cost of

future surgery.
[118] In summary, the total amount of special damages is as follows:
[119] 4% per annum on special damages from date of accident until date of
judgment.
[120] 8% per annum on general damages from date of service of summons

until date of judgment.
[121] 8% per annum on total judgment sum from date of judgment until date
of payment.
[122] Costs to the plaintiff to be taxed unless agreed.

[123] The third party action to be dismissed with costs, to be taxed unless
agreed.

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Bibi Norishma Peruama

BIBI NORISHMA PERUAMA

Sessions Court, Sri Aman

1. Abrasion and laceration - Abrasion

2. Lower limb - Ankle

3. Lower limb - Femur

4. Lower limb - Foot

5. Lower limb - Tibia

7. Skin - Skin grafting

Date of accident: 23 July 2004

Brief Description Of Plaintiff's Injuries

1. 9 cm × 5 cm degloving wound over the right medial malleolus with

3. Closed undisplaced fracture of the right calcaneum

4. Closed fracture distal one third of the right tibia (unicortical

1. Plastic deformity of the right fibula

(a) 5 cm × 2 cm scar above the keloid

(b) 7 cm × 6 cm scar over the inner aspect of the right ankle

(c) 20 cm × 5 cm scar over the inner aspect of the right ankle

3. Split skin grafting over the right medial malleolus

(a) As at date of accident: NA

(b) As at date of hearing: NA

(a) As at date of accident: NA

(b) As at date of hearing: NA

(a) As at date of accident: NA

(b) As at date of hearing: NA

(b) 8% per annum on general damages from date of service of

2. An appeal has been lodged by the defendants against the whole of

Case(s) referred to:

Legislation referred to:

Nixon Kennedy Kumbong, SJ:

[1] This is an action in negligence arising from a road traffic accident on 23

[4] The plaintiff called three witnesses as follows:

(a) PW1, Peruama Rahim, who is the plaintiff's father;

(c) PW3, Dr Lee Woo Guan, who is an Orthopaedic surgeon at the

[5] The defendants called four witnesses as follows:

(a) Abdul Khalid Mohd Parhi, the first defendant; DW1

(c) Dr Kueh Nai Siong, plastic surgeon at Sarawak General Hospital;

(d) Uda Lukman, the assistant administrative officer of Sarawak

Documents tendered as exhibit are as follows:

(i) Bundle of pleadings - A

(ii) Bundle of agreed documents (agreed to authenticity and contents) -

(iii) Bundle of agreed documents (agreed to authenticity) - C

(iv) Bundle of disputed documents - bundle D

(v) Statement of agreed facts - bundle E

(vi) All documents tendered in bundle B

(vii) Third party's police report dated 23 July 2004 at p 2 bundle C -

(viii) Sketch plan and key of sketch plan at pp 3 - 4 of bundle C exh P4

(ix) Kuching Specialist Hospital receipt dated 26 August 2004 at p 7

(xi) Medical report from the Kuching Specialist Hospital dated 24

(e) The stretch of road where the collision occurred is straight.

(h) The point of impact is as marked "X" as shown in exh P4.

3. Closed undisplaced fracture of the right calcaneum.

4. Degloving wound over the right medial malleolus measuring 9 cm × 5 cm

5. Wound was surrounded by abrasion.

to meet such obligations. If he had been travelling at a speed within his

[21] But he could not do so and in my opinion he had failed to observe r 23 of

[29] In Wilson v. PP [1939] 1 MLRH 389; [1939] 1 MLJ 129, Murray-Aynsley

Contributory Negligence Of Minor Plaintiff

Contributory Negligence Of Third Party

Conclusion On The Issue Of Liability

[51] On the basis of my findings on the particulars of negligence, I make a

3. Closed undisplaced fracture of the right calcaneum