20181PIR59 - Limb Tech 2018 Case

[2018] 1 PIR [59] 563
1
Noor Syazwani binti Zabri
(seorang budak bawah umur yang membawa
tuntutan melalui ibu dan wakil litigasinya,
5 plaintif kedua) & Anor
v
Tan Huen Man & 2 Ors
10
Sessions Court, Ipoh – Summons No. A53KJ-329-09/2015
D Sunita Kaur Jessy scj
[59] Quantum – Amputation – Above knee amputation – Below elbow amputation
15 Date of accident
January 15, 2015
Date of grounds of judgment

September 27, 2017
20
Judgment received
May 8, 2018
Brief description of plaintiff’s injuries

25 1. Above knee amputation
2. Below elbow amputation
Disabilities
NA
30
Plaintiff’s age
(a) As at date of accident : NA
(b) As at date of hearing : NA
Plaintiff’s occupation
35
Plaintiff’s earnings
40
Liability
Plaintiff’s claim dismissed
564 Personal Injury Reports [2018] 1 PIR [59]
Award (Based on 100% liability) 1
1. General damages
(a) Above knee amputation – RM 80,000.00
(b) Below elbow amputation – RM 70,000.00
5
2. Special damages
(a) Cost of prosthesis
i. Lower limb prosthesis (RM12,000.00 x
10 changes) – RM120,000.00
ii. Upper limb prosthesis (RM10,000.00 x 10
3 changes) – RM 30,000.00
Note
An appeal was lodged by the plaintiff at the High Court in Civil Appeal
No. AA-12BNCvC-06-08/2017 against the Sessions Court’s finding on liability
15
and quantum and the matter is pending determination.
Interest
(a) 2.5% per annum on special damages from date of accident until date of
judgment.
(b) 5% per annum on general damages from date of service of summons until 20
date of judgment.
(c) 5% per annum on total judgment sum from date of judgment until date
of full settlement.
Cases referred to by the court 25

Abdul Kudus b Hj Abdul Aziz v Normah bt Chik [2003] AMEJ 0057; [2003] 6 MLJ
169, HC
Ahmad Sairan b Yusak & 8 Ors v Khoo Hun Cheong & Anor [2014] 1 PIR [69], sc
Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177
Chandrakandan Munusamy Pemborong Pentex Sdn Bhd v Sasitharan Neelamegam
30
[1991] 2 ILR 730
Joseph Thambirajah v Bank Buruh (M) Bhd [2008] 2 MLJ 773, CA
Kasai Reiko v Annie Lor Lee Fong and Valen Ng Wai Loon & Anor (Public Bank
Bhd – Intervener) [2013] 5 AMR 805; [2014] 7 MLJ 652, HC
Ku Jia Shiuen & Anor v Kerajaan Malaysia & 3 Ors [2013] 1 PIR [47]; [2013] 9
CLJ 489, HC 35
Lai Kim Ho & Ors v PP [1980] 1 LNS 197
Mariam bt Mansor v JD Peter [1975] 1 MLJ 279
Mariapan Kasinathan v Muhamad Hassan Siran & Anor [2014] AMEJ 1016; [2014]
1 LNS 883, HC
Mohamed b Kasdi v PP [1968] 1 LNS 78 40
Mohd Rosle Yusof v Lye Kim Hee [1991] 3 CLJ 2177
Noorazmi Omar v IBM Malaysia Sdn Bhd [2016] 3 ILR 640, Industrial Ct
PP v Leslie Spenser [2017] AMEJ 0847; [2017] 1 LNS 1065, HC
Noor Syazwani binti Zabri v Tan Huen Man & 2 Ors

[2018] 1 PIR [59] D Sunita Kaur Jessy scj 565
1 Saniah & Ors v Abdul Hamid & Ors [1967] 2 MLJ 255
Seng Chong Metal Works Ltd v Lew Fa [1966] 2 MLJ 63
Uthayakumar M Subramaniam v Ang Teng Bee [2016] 2 PIR [57]; [2016] 1 LNS
1214, HC
5 Wan Syaifuddin b Wan Zakaria & Anor v Tan Beng Chuan & Anor [2013] 2 PIR
[10]; [2012] MLJU 1247, sc
Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175, FC
Legislation referred to by the court

10
Road Traffic Rules 1959, rule 10
Road Transport Act 1987
Rules of Court 2012, Order 40A r 3
Other references
Compendium of Personal Injury Awards
15
Solicitors
Surendran Suppiah and Nurul Syahirah Azman (Surendran & Thiru) for plaintiffs
Raam Kumaar (KB Tan, Kumar & Partners) for first and second defendants
A Iruthaya Raj (Raj Selva & Co) for third defendant
20
D Sunita Kaur Jessy scj
[1] This accident occurred on January 15, 2015 at about 7.45 a.m. when
the plaintiff whilst riding her motorcycle bearing registration No. AHB 6908
collided into the first defendant’s car No. AGV 5100 causing her to fall onto
25
the path of the third defendant’s lorry No. ABT 6212. She suffered severe
injuries resulting in amputation of her arm and leg.
[2] Liability was decided wholly against the plaintiff and this claim was
dismissed with costs hence this appeal by the plaintiff on the issue of liability
30 and quantum.
The plaintiff’s version
[3] The plaintiff’s version was that the first defendant’s car grazed into her
motorcycle and this caused her to fall onto the path of the third defendant’s
35 lorry.
The first defendant’s version
[4] The first defendant’s version was that the plaintiff whilst riding her
motorcycle at the left lane had shifted to the right lane and collided into the
40
left rear of his car and fell under the third defendant’s lorry. Therefore liability
rests solely on the plaintiff.
The second and third defendants’ version 1
[5] The plaintiff whilst riding her motorcycle grazed into the first defendant’s
car which caused her to fall under his lorry. Therefore liability rests solely
on the plaintiff.
5
Findings on the issue of liability
Police investigation
[6] The investigation officer (“SP1”) testified that all vehicles were travelling
10
in the same direction when this accident occurred along Jalan Kuala Kangsar.
SP1 also testified on the damage to all three vehicles. His evidence was
Q: Apakah kerosakan lori?
A: Tayar belakang kanan pancit.

15
Kereta – bahagian lampu belakang, kesan calar kiri kereta.
Q: Rujuk gambar-gambar kereta di ms 16?
A: Sebelah kiri pintu dan bumper ada kesan.

20
Q: Kesan calar di pintu dapat dilihat dalam penutup tangki minyak?
Q: Ada kerosakan bahagian belakang kereta?
A: Tiada.
Q: Kerosakan motorsikal? 25
A: Motorsikal rosak di bahagian belakang lampu pecah, rim belakang bengkok,

absorber patah belakang, ekzos belakang bengkok, seat koyak, besi belakang
juga bengkok dan lampu depan signal pecah.
Q: Rujuk gambar motorsikal ms 11, 12 dan 14 ada kerosakan depan?

30
A: Tiada kerosakan di bahagian depan. Lampu depan sahaja pecah. Pemandu lori
tiada di situ tapi maklumat orang awam katakan dia pergi buat laporan polis.
FIR dibuat oleh lori. Pemandu kereta juga tiada di tempat kejadian. Maklumat
orang awam katakan dia telah larikan diri.
[7] The damage to the vehicles was consistent in particular with the damage 35
to the first defendant’s car as it is their version that the plaintiff loss control of
her motorcycle when she collided into his car before falling under the lorry.
The plaintiff failed to prove that the first defendant grazed (himpit) her which
caused her to fall under the lorry. Evidence was lead to show that the plaintiff
was weaving in between the car and lorry when this accident occurred. SP1
40
testified that from his investigations, the first defendant had already moved
in front of the motorcycle and it was the plaintiff who came from the rear.

1 The plaintiff failed to exercise proper care and control of her motorcycle to
avoid colliding or grazing into vehicles in front.
[8] The evidence given by SP1 supports the version put by the defendants
5 that it was the plaintiff who whilst riding her motorcycle collided into the left
rear of the first defendant’s car then she fell under the second defendant’s
lorry. His testimony in court:
Q: ID2C dan D motorsikal jatuh di tengah jalan?
10 A: Ya selepas diseret dan dilanggar lori.
Q: Cdng – sebagai pegawai penyiasat tidak munasabah bahawa defendan memotong

motorsikal plaintif dan bergesel sebab defendan boleh lalui di laluan kanan
dengan selesa disebabkan kelebaran yang mencukupi?
A: Setuju ia gesel.
15
Q: Depan kereta tiada kerosakan?
A: Ya. Dan tepi depan juga tiada rosak. Rosak belakang kiri dan pintu kiri. Ya gambar
pintu tiada. Jurufoto ambil gambar secara sendiri.
Q: Selain dari kenyataan kamu tiada bukti rosak pintu kereta?

20
A: Ya betul.
Q: Kamu saksi berkecuali jadi ada kemungkinan motorsikal hilang kawalan dan jatuh?
A: Kemungkinan.
25
[9] The police investigation is consistent with the version given by the
defendants. The plaintiff failed to exercise control of her motorcycle while
riding along a busy road.
[10] SP1 clearly testified that the first defendant was in front of the motorcycle
30 when the plaintiff coming from the rear collided into the first defendant’s car.
He also agreed that the marks found on the road could have been as a result
of the plaintiff trying to overtake the lorry:
Q: Lihat kesan gurisan di jalan adakah kemungkinan motorsikal cuba memotong lori?
35 A: Ya mungkin.
Q: Cdng – kenapa keluarkan kompaun kereta itu?
A: Sebab laporan siasatan yang saya jalankan dapati kereta potong dan berhenti
depan dan motorsikal gesel dan jatuh bawah lori.
40
[11] His evidence that the first defendant’s car overtook and stopped in front
shows that the plaintiff was coming from the rear and that would explain
the damage to the rear of the car. If the motorcycle was trying to overtake 1
the lorry which was also in front of her, then the duty to ride with care is
definitely on the plaintiff. All vehicles coming from the rear must ride with
care in the attempt to overtake the vehicle in front.
5
Inconsistent evidence by SP1
[12] SP1 was asked questions in relation to the statements which he recorded
in the course of his investigations from both the defendants. When questioned
on whether the contents of police reports made by both the defendants were
consistent with their earlier statements given to him, he answered that they 10
were inconsistent. This was however, proven otherwise when the court
viewed the statement in the investigation paper (IP). SP1 then agreed that
the statement was consistent with their respective police reports:
Q: Ikatan A ms 8 laporan polis defendan ketiga – peguam bacakan – adakah

15
pemandu kata apa? Dalam laporan katakan motorsikal bergesel dan ini konsisten
dengan percakapan?
A: Tidak konsisten.
D1 tunjuk pada mahkamah untuk diteliti sama ada ia konsisten.

20
Mahkamah melihat dokumen tersebut dan dapati ia konsisten dengan laporan polis.
Q: Bila percakapan diambil?
Saksi rujuk pada IP dan nyatakan pada Februari 14, 2015.
Q: Rujuk ms 7 adakah ia konsisten dengan percakapan? 25
A: Ya konsisten.
Q: Bilakah ini diambil?
A: Pada Februari 27, 2015.

30
Q: Kedua-dua percakapan merujuk bahawa motorsikal bergesel dan langgar dengan
kereta dan lori?
A: Ya betul.
Q: Mukasurat 6 adakah ini konsisten dengan laporan polis?

35
A: Ya.
Defendant tunjuk pada mahkamah untuk diteliti.
Mahkamah meneliti dokumen tersebut dan dapati ia konsisten.

40
[13] The statement given to the police is relevant here to show consistency
in the defendants’ version and their police reports – Kasai Reiko v Annie Lor

1 Lee Fong and Valen Ng Wai Loon & Anor (Public Bank Bhd – Intervener) [2013] 5
AMR 805; [2014] 7 MLJ 652 where Lee Swee Seng JC said:
In a civil trial the test of admissibility of a statement under s 112 of the CPC was
one of relevancy to the subject matter of present case. The s 112 statement in the
5
present case, which was taken following a police report lodged by the plaintiff and which
report had been admitted as evidence in this civil trial would be relevant in showing the
frame of mind of the first defendant particularly since the first defendant was obliged
to tell the truth when making such statement in any case the first defendant would
not be prejudiced by the admission of his statement as she had every opportunity
of challenging or clarifying its contents by going into the witness box. As such the
10 s 112 statement ought to be admitted in evidence.
[14] Why SP1 gave inconsistent answers is a puzzle as this is not something
that can be hidden. Since the statements given to the police were consistent
with their respective police reports then there can be no excuse to testify
15 otherwise. This goes to the creditworthiness of SP1 as a witness:
i. Mohamed b Kasdi v PP [1968] 1 LNS 78:

no hard and fast rule can be laid down for determining the credibility or
otherwise of a witness, but when a witness gives or makes two statements
which differ in material particulars there must be ground for believing that
20
he is not a truthful wintess.
ii. Lai Kim Ho & Ors v Public Prosecutor [1980] 1 LNS 197:
viewed as a whole it seems clear that the finding of fact made by the trial
judge solely on the credibility of the witness. The trial judge heard the testimony
25
of each witness and had seen him. He also had the opportunity to observe the
demeanor of the witnesses. Discrepencies will always be found in evidence of
witness but what a judge has to determine is whether they are minor or material
discrepencies. And which evidence is to be believed or disbelieved is again
a matter to be determined by the trial judge based on the credibility of each
witness. In the final analysis it is for the trial judge to determine which part
30 of the evidence of a witness he is to accept and which to reject …
iii. Noorazmi Omar v IBM Malaysia Sdn Bhd [2016] 3 ILR 640, Industrial
Court, Kuala Lumpur, telah merujuk pada kes Chandrakandan
Munusamy Pemborong Pentex Sdn Bhd v Sasitharan Neelamegam [1991]
35 2 ILR 730 (Award No. 208 of 1991):
finding of fact are to a large extent determined by the credibility of witness,
and sometimes it is difficult to determine who is speaking the truth. But once
a witness’ credibility is suspect, not only by observation of his demeanor, but
by his answers to questions that are not by itself central to the substantive issues
to be decided, then the court is unlikely to believe his evidence on the central issues
40 of fact to be decided by the court …
The police photographs 1
[15] The plaintiff’s bundle of documents had 30 photographs (from pp 10-23)

of the motorcycle, the lorry, the first defendant’s car and scene of accident
together with photographs of the plaintiff’s injuries. SP1 then testified that
5
the police photographs were taken by a police photographer (“SP2”) without
his instructions. When questions were put to him in relation to the damage
to the vehicles, he was unable to give a clear account of it. SP1 being the
investigation officer in this accident was unable to explain the photographs:
Q: Gambar polis berapa keping? 10
A: 14 keping gambar.
Q: Ada rekod gambar?
A: Saya arahkan jurufoto gambar. Tiada rekod berapa gambar diambil.

15
Q: Jenis kamera?
A: Tidak tahu.
Q: Ada kamu ambil gambar?
A: Ya ada gunakan kamera Olympus model tidak tahu dan tidak boleh kemukakan sebab 20
ia rosak dan hilang, ia kamera personal. Gambar mangsa saya ambil dengan kamera
sendiri.
Q: Kamu sentiasa bawa kamera? Di mana kamera kamu sekarang?
A: Tiada bukti sebab kamera hilang. 25
Q: Kenapa tidak ambil gambar motorsikal keseluruhan?
A: Saya arahkan jurufoto tapi dia tidak ambil. Ini kamera digital.
Q: Selepas ambil gambar adakah kamu cek?

30
A: Tidak.
A: Ya. Dan tepi depan juga tiada rosak. Rosak belakang kiri dan pintu kiri. Ya
gambar pintu tiada. Jurufoto ambil gambar secara sendiri.
35
[16] He failed to give an exact account of how many police photographs were
taken and could not explain on the damage found to the first defendant’s car
and the plaintiff’s motorcycle. This is because the photographs were taken
without his instructions by the police photographer (SP2):
40
Q: Gambar di ms 10-18?
A: Saya tidak ambil gambar ini. Gambar diambil oleh jurufoto. Gambar mangsa
saya ambil sendiri.

1 Soalan mahkamah: Sepatutnya jurufoto ambil gambar atas arahan kamu sebagai
pegawai penyiasat.
A: Ya tapi ketika itu saya tiada dan jurufoto ambil gambar dengan sendiri.
5 [17] He could give no reasonable explanation as to why SP2 was taking the
photographs without his instructions when he is the investigation officer in
charge to investigate this accident.
[18] On this issue of photographs, he also testified that he had taken some
10 photographs with personal camera at the scene but was unable to produce
them as he had lost his camera. There was no explanation given as to why
he used his personal camera whilst on police duty or why photograhps of
the plaintiff’s injuries were taken by him and produced in the bundle. The
duty of a police investigation officer is to investigate the accident in order to
establish the truth and not to generate sympathy:
15
Public Prosecutor v Leslie Spenser [2017] AMEJ 0847; [2017] 1 LNS 1065,
High Court, Sarawak:
The evidence of the investigating officer is far from being formal. His duties are
many and varied but the single most important duty is investigate all relevant
20 aspects of the case, irrespective of whether the results of the investigation favour the
prosecution or defence. The investigating officer has to be fair whose primary
duty is to ascertain the truth (see Gollapa Avana Naik & Ors v The State [1968]
Criminal Law Journal 929). The Indian Court in Jamuna Chaudhary & Ors v State
of Bihar [1974] 3 SCC 774 emphasised: “The duty of the investigating officer is not
merely to bolster up a prosecution case with such evidence as may enable the court to
25 record a conviction but to bring out the real unvarnished truth”.
[19] The duty of an investigation officer is crucial to establish the truth of the
matter. SP1 was unable to explain with certainty the details of the photographs
taken. The question also arises as to why would an investigation officer go
to a scene of accident with a police photographer and at the same time use
30
his personal camera to take photographs. This cannot be part of his police
duty and his investigation is incomplete as the photographs were taken by
SP2 without his instructions.
[20] The police photographer (SP2) was unable to explain why certain
35 photographs were taken. In a police investigation, it should be the duty of
the investigation officer to guide the photographer as to photograph which
should be taken so that the damage or marks of the accident can be seen. In
this accident not much value can be attached to the police photographs as
it was taken without instructions from the investigation officer. There was
40
also some confusion as to the number of photographs taken in this accident.
There were 22 photographs in the plaintiffs’ bundle of document, but only
14 was confirmed by SP2:
Q: Gambar M dan N diambil di mana? 1
A: Kawasan parking depan IPD Ipoh. Ya ada kesan di tangki minyak sebab calar
hanya sedikit. Tidak disukat.
D1 bantah sebab gambar dalam bundle adalah 22 keping tapi saksi ini kemukakan 5
16 keping sahaja.
Mah: Jurubahasa to circle photographs as per the photographs produced by this witness.
The photographs are not in proper order and to be remarked with new numbering
according to the photographs produced today by this witness.
10
14 keping gambar.

ID2 jadikan P2 14 keping gambar A-N sahaja.
[21] The other photographs in the plaintiffs’ bundle of documents of the

plaintiff’s injuries were left unexplained and unmarked and this was challenged
15
by the defendants:
… ketika itu saya tiada dan jurufoto ambil gambar sendiri.
It is the duty of SP1 as the investigation officer to guide SP2 as to the relevant
photographs to be taken so that he can explain to this court the purpose the 20
photographs were taken. This shows that the investigation was conducted in
a poor manner. Therefore very minimal value can be attached to the police
photographs.
[22] SP1 had also testified that on the damage to the vehicles but this
25
cannot be seen as the photographs were not taken properly. The duty of
the investigation officer is to investigate impartially and produce evidence
in court. This was not a violent accident therefore the damage caused was
minor. SP1 also stated that there was damage to the left rear car door which
no photograph was taken. Therefore SP1 should have exercise some care in
the taking of the police photographs of the damage: 30
Q: ID2E daripada gambar ini tidak boleh lihat fok jika ia rosak?
A: Ya betul. Daripada pemeriksaan saya fok tidak rosak sebelah kanan dan saya tiada bukti.
Q: Rujuk ID12C, E, J, O, Q dan U ia tidak menunjukkan fok motorsikal?

35
A: Ya betul.
Q: Kenapa tidak ambil gambar motorsikal keseluruhan?
A: Saya arahkan jurufoto tapi dia tidak ambil. Ini kamera digital.
40
Q: Selepas ambil gambar adakah kamu cek?
A: Tidak.

1 Q: ID2M dan N kamu kata ada calar di tangki minyak – mana kesan?
A: Ya ada, saksi tunjuk pada atas tangki minyak.
Q: Adakah disebut kesan calar?

5
A: Dalam gambar tiada calar, tapi masa periksa di kenderaan ada.
Q: Mukasurat 4 perenggan akhir, selepas impak motorsikal jatuh di laluan lori,

impak antara motorsikal dan kereta dan apabila impak dia jatuh di laluan lori?
A: Ya kemungkinan.
10
Q: ID2C dan D motorsikal jatuh di tengah jalan?
A: Ya selepas di seret dan dilanggar lori.
Q: Cdng – sebagai pegawai penyiasat tidak munasabah bahawa defendan memotong

motorsikal plaintif dan bergesel sebab defendan boleh lalui di laluan kanan dengan
15 selesa disebabkan kelebaran yang mencukupi?
A: Setuju ia gesel.
A: Ya. Dan tepi depan juga tiada rosak. Rosak belakang kiri dan pintu kiri. Ya
20
gambar pintu tiada. Jurufoto ambil gambar secara sendiri.
Q: Selain dari kenyataan kamu tiada bukti rosak pintu kereta?
A: Ya betul.
25 Q: Kamu saksi berkecuali jadi ada kemungkinan motorsikal hilang kawalan dan
jatuh?
A: Kemungkinan.
[23] The police photographs should have been taken from a closer range
30 so that it can be seen.
[24] This court finds that the entire investigation was poorly conducted as
SP1 testified that he failed to guide SP2 in the taking of the police photographs.
There were many more photographs in the bundle compared to what was in
the IP. SP1 also gave an illogical answer when asked if there were independent
35 witness to this accident:
Q: Kamu kata orang ramai beritahu defendan larikan diri? Jika ini benar orang
ramai semestinya ada saksikan kemalangan?
A: Ya. Ada cuba cari saksi bebas dan tidak catit nama saksi. Tumpuan saya ketika
40 itu pada siasatan kemalangan.
If this is true then why SP2 was not given the necessary instructions on
photographs to be taken, why he was left to take photographs on his own.
Police summons 1
[25] SP1 testified that he had issued summons on the first defendant in this
accident. However, based on his evidence in court, he stated that the first
defendant had moved in front and stopped his car when the plaintiff was
5
unable to control her motorcycle (tidak kawal) and fell under the lorry. The
second defendant also stated the same, the reason being that the traffic light
ahead was red so all vehicles had come to a stop when the plaintiff came from
the rear in her attempt to move in between his lorry and the first defendant’s
car when she fell:
10
Q: Keputusan kes?
A: Saman pada defendan. Daripada keterangan dan rakaman percakapan, pemandu

kereta berhenti depan motorsikal dan dia tidak lihat kehadiran motorsikal sebelah
kiri. Kedua-dua dari arah sama, motorsikal di sebelah kiri, lalu lintas mungkin
sibuk dan kereta memotong dan berhenti di depan motorsikal dan dia tidak kawal 15
motorsikal dan dia tercampak bawah lori dalam siasatan memandangkan kereta
di ubah dari tempat kejadian jadi saya tidak pasti jika kereta jauh dari motorsikal.
Daripada siasatan kereta tidak beri laluan pada motorsikal.
[26] SP1 testified that based on his investigation he issued a summons was
under rule 10 of the Road Traffic Rules 1959 (LN166/59): 20
Rule 10. Drivers not to sleep.
No driver of a vehicle moving along a road shall sleep or otherwise neglect to exercise due
control over the movements of the vehicle.
25
[27] There was no evidence to show if the first defendant was sleeping or had
neglected to exercise due control of his vehicle. SP1 had clearly contradicted
himself when he stated that based on his investigation that the first defendant
had moved to the front and it was the plaintiff who came from the rear:
… kereta memotong dan berhenti di depan motorsikal dan dia tidak kawal 30
motorsikal dan dia tercampak bawah lori …
and at the same time a summons was issued against the first defendant. If
at all it was the plaintiff who failed to exercise control over her motorcycle
which caused this unfortunate accident. There was no evidence to suggest
35
that the first defendant had grazed or “himpit” the plaintiff.
[28] Flowing from this, the first defendant denied receiving the said summons
what more paying for it. SP1 testified that the summons was paid at the
Kampar police station which the first defendant denied. The first defendant
clearly disputed receiving the said summons and questions were asked to 40
SP1 as the investigation officer on the method of sending the summons. His
answers were as such:

1 Q: Kamu kata hantar saman?
A: Ya.
Q: Kamu hantar saman secara pos?

5
A: Ya pos biasa. Tidak bawa hari ini dan akan cuba dapatkan bukti pos pada tarikh
lain.
Q: Adakah defendan bayar kompaun?
A: Tidak pasti.
10
Q: Ada rekod saman dibayar?
A: Ada bukti resit bayaran. Tidak pasti di bayar oleh siapa. Ada resit dan ditunjukkan
di mahkamah.
Q: Kamu tidak pasti siapa bayar?

15
A: Ya.
Q: Bila bayaran dibuat?
A: Tidak pasti mungkin dibayar di Kampar. Saya tidak pasti jika ini sangsi.
20 Q: Defendan tinggal di Ipoh jadi kenapa perlu dia pergi ke Kampar untuk buat
bayar?
A: Saya cuma print dan bawa ke mahkamah.
Q: Kamu kemukakan melalui peguam satu envelope bahawa saman dihantar?

25
A: Ya.
Q: Hantar bagaimana?
A: Secara pos.
30 Q: Kemukakan buku hantar surat?
A: Tidak dicatit.
Q: Sila kemukakan buku tersebut?
A: Saya tertinggal.
35
Q: Mana ada orang simpan envelop sebagai bukti?
A: Saya simpan dalam IP.
Q: Jadi dari masa itu kamu fotostat envelope?
40 A: Ya.
Q: Boleh buktikan dokumen in dihantar serah pada defendan?
A: Tidak pasti.
Q: Saman yang dikeluarkan mesti dihantar melalui pos register? 1
A: Tidak pasti.
Q: Cdng – jika hantar melalui normal pos ia tidak sah?

5
A: Saya hantar melalui pejabat.
Q: Kenapa saman di bawah rule 10?
A: Sebab kereta memandu secara cuai.
Q: Apa kesilapan pemandu kereta? 10
A: Memandu dan memotong dan berhenti depan.
Q: Rule 10 menyatakan jika tidur adalah salah?
A: Tidak.
15
Q: Adakah pemandu tidur ketika memandu?
A: Tidak.
[29] According to SP1 he sent the summons via ordinary post and kept a
copy of the envelope in the IP and which was shown to this court (on the 20
subsequent hearing date). This cannot be a correct method of proof of service
of a document. When a summons is put into an envelope and sent off in post,
surely the police would not retain a copy of the evelope as proof of service?
The law provides for a proper method of service under the Road Transport
Act 1987 (Act 333):
25
53. (1) Where a police officer or a road transport officer has reasonable grounds
for believing that any person committed an offence against this Act, he
may in lieu of applying to the court for a summons, forthwith serve upon
that person a notice in the prescribed form ordering that person to appear
before the nearest court of a Magistrate having jurisdiction to try the offence
at a time and date to he stated in such notice. 30
118. (1) Any notice required to be given or served under this Act may, unless some
other form of service is prescribed be sent by registered post to the person
affected thereby.
[30] This is an illogical statement coming from SP1 as in the usual course 35
of government duties any document or letters sent out must be recorded in
their record book. The plaintiff failed to show that the summons was sent
out according to the requirement under the law.
[31] The first defendant not only challenged on the issue of summons 40
received but also that it was not paid by him. It was shown that SP1 failed to
comply with the requirement under the law for the proper method of service
of summons. On the issue that summons was paid at Kampar Police Station,

1 again he could not confirm this. The first defendant accordingly lodged a
police report (D31) to deny receiving the said summons:
… Saya tidak pernah menerima sebarang panggilan talipon daripada Sarjan

Nordin Abu Bakar (No: 11854) untuk menyerahkan saman di bawah Rule 10,
5
saya tidak pernah menerima saman di bawah Rule 10 daripada pihak polis dan
saya tidak pernah ke Kampar pada 15/9/2015 serta membayar kompaun untuk
saman yang dikeluarkan terhadap saya. Saya tidak cuai di dalam kemalangan
pada 15/1/15 dan saya tidak akan membayar sebarang kompaun kerana saya
sedia ke Mahkamah melwan kes saman polis dan sivil terhadap saya. Jelas pihak
tidak diketahui telah melakukan frod terhadap saya dan saya pohon pihak polis
10 dengan segera menyiasat kes ini atas laporan ini. Saya pohon hasil siasatan polis
diberitahu kepada saya secara bertulis.
[32] As an investigation officer he should have been able to extract some

evidence to show who paid for the summons. Since the summons was not
15
properly served under the law therefore it is safe to assume that the summons
was not paid the first defendant. The burden of proving that the summons was
sent out and paid accordingly was on the plaintiff and they failed to discharge
that burden. The plaintiff then sought to adduce evidence to show that the
first defendant had been issue with summons while driving at Slim River.
This is clearly irrelevant to this case. The envelope produced and shown to
20 this court could only be marked as an identification document which does not
have any evidential value – Joseph Thambirajah v Bank Buruh (M) Bhd [2008]
2 MLJ 773. The question of negligence is for this court to decide base on the
evaluation of the evidence in totality – Abdul Kudus b Hj Abdul Aziz v Normah
bt Chik [2003] AMEJ 0057; [2003] 6 MLJ 169 and the payment of compound
25 Wan Syaifuddin b Wan Zakaria & Anor v Tan Beng Chuan & Anor [2013] 2 PIR
[10]; [2012] MLJU 1247 which stated that the payment of compound cannot
be taken into consideration for the purpose of assessing negligence as it is
the duty of this court to assess the evidence in totality.
[33] The defendant also raised the issue that SP1 had gone beyond his scope
30
of work when he proposed to the first defendant to visit and help the plaintif
as she had sustained serious injuries:
Q: Adakah kamu minta dia mengaku salah bagi membantu plaintif?
A: Tidak. Plaintif bukan kenalan saya. Saya tidak dijanjikan ganjaran untuk
35 menolong plaintif. Mangsa masih remaja dan pemandu lori dewasa jadi boleh
beri sokongan moral dan bantuan duit.
Q: Arahan dari defendan bila ambil percakapan dia kata kamu suruh dia mengaku
untuk tolong plaintif?
40
A: Tidak setuju. Saya minta dia berikan sokongan moral iaitu untuk defendan melawat
plaintif di hospital. Adakah salah saya minta dia ziarahi pesakit.
[34] SP1 in the conduct of his duty must be seen as impartial. His duty is to 1
establish the truth based on his investigations. However, what can be gather
from his testimony in court was that the first defendant was travelling on
his rightful path and moved in front togethwer will all other vehicles when
the plaintiff came from the rear in her attempt to ride in between the lorry 5
and car when she lost control of her vehicle and fell under the lorry. The
other version came from the second defendant who stated that he was how
it happened and this was confirmed by SP1 that the statement from both the
defendants were consistent with their police reports. Part of his investigation
was also from the statement from the plaintiff who confirmed that she was
10
coming from the rear.
The plaintiff’s evidence
[35] The plaintiff testified that she was riding her motorcycle on the day in
question when the traffic slowed down to a stop because the traffic light ahead 15
was red (the traffic light was approximately 200 meters ahead). Reference to
her testimony as from the witness statement:
… saya menunggang di lorong kanan, tiba-tiba sebuah motorcar no. tidak ingat
dari arah belakang saya memotong motorsikal saya di sebelah kanan dan telah
menggesel bahagian hadapan kanan motosikal saya dan menyebabkan motosikal 20
saya hilang kawalan dan saya terus terjatuh di bawah sebuah lori no. tidak tahu.
Motokar tersebut datang dari arah belakang bahagian kanan saya tiba-tiba bergerak
ke kiri semasa memotong motosikal saya dan terus menggesel motosikal saya
bahagian kanan iaitu handle and pemijak kaki. Akibat dari geselan tersebut,
motosikal saya berpusing (swerve) dan menyebabkan saya terhumban ke sebelah
kiri saya dibawa lori yang sedang bergerak sebelah kiri saya. 25
[36] There can be no reason for the first defendant’s car to move to the left as
the lorry was on the left lane. To move left would mean that the first defendant
was going to collide into the lorry and based on evidence both the lorry and
the car was moving along its rightful path. Based on her testimony, the first
defendant’s car was coming from the rear and overtook her motorcycle and 30
grazed her motorcycle handle which caused her to fall under the lorry on her
left. However, during cross-examination she stated otherwise:
Q: Sejurus sebelum kemalangan had laju?
A: Sama sebab ketika itu semua kenderaan berhenti dan lampu hijau. 35
Q: Rujuk P1 ms 9 – tidak dapat lihat lampu isyarat – jadi mana lampu isyarat?
A: Ya. Lebih kurang 200 meter ke depan. Jarak lebih sikit dari pagar mahkamah
depan.
40
Q: Rujuk P10 ketika itu kamu tunggang di tengah jalan?
A: Ya.

1 Q: Rujuk P2DFHI dan IDOR ia menunjukkan kamu tunggang di tengah jalan?
A: Ya.
Q: Cuaca terang dan keadaan trafik sibuk?

5
A: Ya.
Q: Di tempat kemalangan keadaan trafik sibuk dan perlahan sebab lampu trafik
depan?
A: Ya.
10
Q: Cuba lihat ms 6 – Di mana kamu kata kereta defendan dari belakang dan cuba himpit
kamu?
A: Tidak nyatakan.
Q: Jka kereta dari belakang semestinya dinyatakan dalam laporan?

15
A: Ya setuju. Tidak dinyatakan sebab sukar untuk susun ayat.
Q: Rujuk laporan kamu dan katakan kereta menggesel bahagian depan motorsikal kamu.
Cdng – ia bukan kanan tapi handle motorsikal?
20 A: Ya setuju.
Q: Bila melalui lori bahagian badan kamu lengsong ke kanan dan handle kamu
kena pada kereta?
A: Ya setuju.
25 Q: P2N adakah kamu boleh lihat lampu kereta pecah?
A: Ya.
Q: Ini berlaku sebab kamu hilang kawalan dan terkena kereta?
A: Ya.
30
Q: Ketika kemalangan kamu lebih di laluan lori? Ini geseran dan kamu lebih di
laluan lori?
A: Ya.
Q: Kelebaran kereta ialah 1,700 mm dan jika kamu di X sebelum kemalangan sudah tentu
35 kereta boleh lalui dengan senang?
A: Setuju.
Q: Jadi tidak lojik dia langgar kamu sebab ada ruangan selesa?
A: Ya.
40
Q: Dalam percubaan memotong lori dan kereta kamu hilang kawalan dan jatuh
ke laluan defendan dan lori?
A: Setuju.
[37] From her evidence above, she was travelling in the centre (tengah jalan). 1
She had also testified earlier that the volume of traffic was high during that
morning and all vehicles had stopped (ketika itu semua kenderaan berhenti)
because the traffic light was red and had just turned green so vehicles were
moving slowly. If this is true, then the version given by the first defendant 5
is to be believed that he was already in front when the plaintiff came from
the rear and collide into his car and fell under the lorry. There was sufficient
space for the car to move in his own lane and from evidence it was the plaintiff
who lost control and caused this collision.
10
[38] The plaintiff also agreed that in the attempt to overtake the lorry and
car she was moving in between both the defendant’s vehicle when she lost
control and fell under the second defendant’s lorry. No where in her police
report did she state that the first defendant came from the rear. She testified
that the lorry was on her left and she came from the rear and was trying to
overtake the lorry when the accident happened. Reference to her notes of 15
evidence where she clearly stated:
Q: Soalan 8 – adakah kamu berada di belakang lori? Bila lihat lori itu?
A: Tidak sampai 5 hingga 10 minit. Sebab lori berhenti dan kemudian bergerak.
Saya ikut belakang lori. 20
Q: Lori di kiri?
A: Ya. Lori tidak pasti jika perlahan.
[39] The evidence above shows that she was coming from the rear and in
25
the attempt to overtake collided into the first defendant’s car. There was a
possibility that she was actually trying to mannouvre her way to the front as
the traffic light had turned green. SP1 also from his investigation stated that
the vehicles had stopped in front and it was the plaintiff who came from the
rear. The second defendant in his evidence clearly testified the same. Therefore
I find liability to be against the plaintiff. 30
The first defendant’s evidence
[40] The first defendant testified that the plaintiff came from the rear and
collided into his car before falling under the lorry. This was repeated not once
but three times, in his police report, statement to the police and confirmed by 35
SP1 and in the statutory declaration. He was very firm in his evidence in court
and his version was the same despite being asked repeatedly. His version was
supported by SP1 and the plaintiff’s evidence. Reference to his police report:
(1) Police report: 40
Pada 15/1/15 lebih kurang jam 8.05 pagi, saya memandu m/kar saya AGV
5100 jenis Toyota Altis dari Chemor hendak balik ke Ipoh melalui jalan Kuala

1 Kangsar. Apabila sampai berhampiran jalan Klebang Jaya, saya memandu di

lorong kanan sebuah motorsikal nombor tidak pasti, tiba-tiba melanggar bahagian
kiri m/kar saya dan penunggang motorsikal tersebut terjatuh di bawah sebuah lori
treler nombor tidak tahu …
5
(2) Statutory declaration (D30):
… The reason I said that I did not cause this accident to the said motorcyclist
is because at the time of the accident I was coming from Chemor to Ipoh
where I was driving on the right lane and lorry bearing registration number
ABT 6212 was on the left lane. At the time the traffic was heavy as it is a
10 main road during morning working hour. Whilst I was driving at about 40 –
45 km per hour suddenly I heard a noise from the left rear of my car. …
[41] Reference to his evidence in court where he gave a clear account of

how the accident happened. He was referred to the photograph marked as
P2N which shows a broken rear light:
15
Q: Ikatan A ms 7 D29 paragraph 3 – bacakan “lampu belakang kiri pecah” did the accident
occur from the rear?
A: Ya setuju.
20 Q: Gambar sama – if it was a mere graze would the damage be as per the picture?
A: Kalau bergesel sahaja lampu tidak akan pecah seperti ini.
Q: Bila disoal tadi – mengenai other motorbikes passing between your car and
lorry. Did the plaintiff manage to pass by in between your car and lorry?
25 A: Tidak.
Q: At the time of accident was your car stand still or moving?
A: Sedang bergerak dengan perlahan.
30 [42] This broken rear light (photograph P2N) completes the version given
by the first defendant and confirmed by SP1 and plaintiff that it was the
plaintiff who collided fronm the rear. He only realised the accident when he
felt a movement to his car:
Q: Bila dengar bunyi kemalangan?

35
A: Selepas motorsikal langgar belakang saya dan kereta saya bergegar baru sedar
ada kemalangan.
Q: Then you saw motorcycle fall down under lorry?
A: Setuju.
40
[43] The first defendant stood firm in his account from the beginning until
his evidence in court that the accident occurred when the vehicles were
moving at a slow speed as the light had just turned green. Therefore it was 1
the plaintiff who came from the rear and in her attempt to move in between
vehicles, she met with this unfortunate accident.
The third defendant’s evidence 5
[44] The third defendant testified that he witnessed this accident and related
the account in court of what he saw. Reference to his police report would show
that the accident occurred when the plaintiff collided into the first defendant
car before falling under his lorry:
10
Police report:
… apabila melepasi persimpangan lampu isyarat Klebang Jaya, semasa saya
memandu di lorong kiri sebuah motosikal nombor tidak ingat telah bergesel dengan
sebuah kereta yang berada di lorong sebelah kanan saya dan menyebabkan motosikal
tersebut telah terjatuh masuk ke laluan saya. … 15
[45] This report was lodged on the same day of the accident at 12.22 p.m.
when the accident was still fresh in his mind. This witness also made a statutory
declaration and gave an account of how the accident occurred:
… This is the road with double lanes on both directions. Both lanes were congested. 20
I was driving on the left lane. There was a traffic junction ahead to Klebang Jaya.
When I was approaching this traffic light the traffic came to a stop. When the lights
turned green the vehicles started to move. The cars on the right lane were moving
slowly. I engaged the gear and started to move. I looked at the rear mirror and
I saw 3 motorcycles coming from behind attempting to overtake my lorry. Two
motorcycles passed my lorry. The third motorcycle grazed against one of the cars 25
on the right lane and lost control. I heard motorist hooting their horns. I stopped
and looked behind and I saw someone lying underneath my lorry. … The lorry had
been moved to the side table and the injured person taken to hospital. At the time
of accident the weather was fine and visibility was good. At the time of accident there
were also vehicles behind my lorry and also in front. I drove to the lorry back to
Tasek to unload the goods and drove the empty lorry to the police station and the 30
I.O. took photographs. I made a police report at about 12 noon on the day of accident. I
have seen and read my report and the contents are correct. The I.O. recorded a statement
from me on the same day. I repeated what I said in my police report which is true.
The motorcyclist grazed against the car on the right lane and lost control and
fell under the lorry I was driving. I have not received any summons or compound
notice from the police. I have a clean record. I have been driving lorry for the last 35
35 years and except for minor accidents I was not involved in any major accidents
at all. If I am called to give evidence I will tell the truth. I stand by my police report made
on the day of the accident.
[46] The third defendant clearly repeated his account of the accident in
court as he did in his police report and the statutory declaration. During 40
cross-examination, he confirmed that it was the plaintiff who was moving in
between his lorry and the first defendant’s car:

1 Q: Ketika lampu hijau ketiga-tiga motorsikal di mana?
A: Bila lampu hijau, dua motorsikal telah lepas dan motorsikal ketiga sudah
bergesel dengan kereta.
5 Q: Motorsikal itu gesel bahagian mana kereta?
A: Sebelah kiri kereta.
Q: Lori kamu di kiri dan motorsikal di tepi kamu – kereta di mana?
A: Kereta di sebelah kanan. Kereta bukan dari belakang tapi sebelah kanan lori saya.
10
Q: Adakah penggeselan berlaku bila semua kenderaan sedang bergerak ke hadapan?
A: Ya.
Q: Jadi kemalangan berlaku bila kenderaan sedang bergerak ke hadapan?
15 A: Ya.
Soalan dari mahkamah:

Saya dengar bunyi dan kemudian lihat cermin tepi. Saya dengar bunyi dan juga lihat
pergeselan.
20 Q: Kamu pasti motorsikal tidak langgar bahagian belakang kereta?
A: Cuma dengar bunyi dan lihat gesel dan tidak tahu jika langgar belakang.
Q: Cdng – kamu tidak lihat kemalangan dan hanya dengar bunyi?
A: Memang selepas dengar bunyi dan kemudian lihat.

25
Q: Cdng – pada setiap masa motorsikal berada di tengah-tengah antara lori kamu
dan kereta?
A: Ya.
30 [47] This would confirm that at the material time the plaintiff was in
riding in between the lorry and car, therefore the fault lies on the plaintiff
for weaving in between the lorry and car. The plaintiff also stated that all
vehicles had stopped as the light was red and she was positioned behind the
lorry, therefore she should have let the vehicles move forward then slowly
move to the front herself and not go in between two vehicles. This clearly
35
shows that the plaintiff is the author of her own misfortune.
[48] The third defendant again confirmed his evidence when he was
questioned further by the first defendant’s counsel again of the entire accident:
40 Q: Sila lihat pada rajah kasar – bila kamu di kiri jalan sebelum kemalangan ketika
itu lori dalam keadaan berhenti?
A: Ya.
Q: Kenapa? 1
A: Sebab lampu depan merah.
Q: sebelah kanan kamu kenderaan juga berhenti?

5
A: Ya.
Q: Rujuk pada soalan 18 dan 19 – adakah jawapan di sini konsisten dengan laporan polis
kamu dan juga dengan keterangan di mahkamah?
A: Saksi sedang baca – ya sama.

10
Q: Rujuk ikatan ID35 surat akuan – rujuk perenggan 11 – memandangkan kamu
beritahu pada mahkamah kereta memandu perlahan sebab ada kereta lain
di depan jadi keterangan dalam surat akuan adalah konsisten?
A: Ya.
15
[49] The evidence given by the third defendant was consistent in his police
report, statutory declaration and in court to show that the plaintiff was at
fault in this accident.
The MIROS expert evidence

20
[50] The defendant called a crash expert, Professor Dr Wong Shaw Voon
(“DW4”) from the Malaysian Institute of Road Safety Research (MIROS) to
analyse how this acciddnt could have occurred. Miros is a government body
responsible for analysing accidents. DW4 testified on the most probable crash
configuration as stated in his expert report (D4):
25
the most probable crash configuration is that the plaintiff had collided into the rear of the
first defendant’s car with its offside handle bar hitting the rear of the car and then the rear
side of the car lamp assembly where subsequently contacted impact between the motorcycle
and bumper of the car; and
The plaintiff was coming from the rear at a higher speed thatn the 1st defendan’s car whilst 30
manoeuvring towards the said car upon colliding into it lost control or balance fell into
the 3rd defendant’s lorry.
[51] This was adduced after he made very precise calculations on the width
of the vehicles together with the width of the road. His evidence was never
challenged with any other evidence on the calculations of width and length 35
of vehicles, road or a possible scenario of the accident. Therefore this court

accept the evidence given by DW4 on the analysis as he gave good, clear
and precise evidence analysis of the accident. He gave very detailed account
of the damage found to the first defendant’s car, with precise calculations
of the angle of slant of the plaintiff’s motorcycle and the speed. During 40
cross-examination:

1 Q: You say handle has to be slanted?
A: The height difference will also include the rider and not just the bike. The variation
of measurement to include the rider on top of it to get correct measurement. Not
appropriate to measure the bike without a rider.
5
Q: Reason why the bike slanted off side?
A: Analysis done based on damage according to the law of physics. Damage to rear
lamp and bumper pushed towards front. Handle bar is the most furthest and
in between the handle bar and the bottom part is empty. The hand brake and
handle bar of the bike caused damage to lamp of the car. The bike have to slant seven
10
degrees, so bike slanted towards car otherwise it will not touch. That was first contact.
Q: So the bike slant to left and collide into car?
A: Yes.
15
Q: Cdng – tail end of handle bar of bike which knock the lamp of car?
A: Yes the right handle of bike hit the car.
Q: After colliding with car the bike would have fallen to right?
A: No. Because the car is still there. The only thing that was moving was the bike
20 and not the car. The bike was moving faster thereby causing it to hit. The car
is 1,200 kg in weight and the bike is lighter so the impact will not cause car to
move or change its postion. The bike will fall to the other side as is the law of
dynamics.
Q: Cdng – after handle bar collided with lamp so it could not have gone any
further?
25
A: No. All objects have a six degrees freedom of motion. So for this bike a lateral
movement will not be possible and could still move further as it was a side
hit to car. Because of the dynamics of the hit it cannot fall towards car because
car still there at its position and this is called “spring back” in layman terms is
called bounce back.
30
Q: Cdng – no dent or mark on gambar N – bumper displaced?
A: Not displaced but pushed forward and detached.
Q: Cdng – no damage to rear of bumper to show it has been pushed forward?

35 A: Bumpers not designed to absorb energy or impact. So to be detached like this there
must be a push. So any hit or knock on the side will end up like this. Most bumpers
are hollow on the inside.
Q: What caused the fork of the bike to be deformed?
40
A: Here there are two reasons: twisted and bent. Twist can be seen in gambar F. If
it is a frontal collision it will be deformed going down wards. But in this case
it was deformed upwards/outwards. There is a possibility that when the bike
went under the lorry, the lorry pushed it down even further. It can happen as
if we were to look at picture of lorry there is a big gap between the front and 1
back tyre. I am very certain that the bike was pushed down wards and then
the twist happened.
Q: Page 4 on second last paragraph – so as soon as impact happen the rider flung
to roof of car? 5
A: The rider and bike are detached and based on law of physics she may move
and may be flung forward or to side. Or it could have been that the helmet
which she was wearing touched the roof of car which then caused the damage
to roof. Ony thing that can happen here is that the bike is faster than car. Yes I
stand by my report. 10
Q: Cdng – so based on how you described the accident, the rider was flung to
roof?
A: Disagree as she was thrown forward.
[52] The photograph in P2N clearly shows a detached bumper and the 15
cause of this was confirmed by DW4 occurred as a result of the foot rest of
the motorcycle colliding into the car:
Q: Gambar N – from you analysis where is the initial impact for bumper?
A: The bottom. Caused by foot of rider or foot rest or anything. 20
[53] After the collision with the car the motorcycle fell under the lorry
(left) due to the law of dynamics. DW4 also stated that based on the law of
physics the only possible way for the roof of the car to be damage is if either
the plaintiff was thrown forward or the helmet which she was wearing could 25
have touched the roof of the car. This is based on detailed calculations and
scientific analysis.
Conclusion
[54] Based on the evidence before this court, I find liability was clearly and 30
wholly against the plaintiff for her failure to ride with care. From evidence
adduced here, all vehicles were moving at a slow speed as the light had just
turn green and the plaintiff coming from the rear should have exercised care
and control of her motorcycle and could have prevented this collision. In this
circumstance of facts of this case, I find in all probability the plaintiff was
35
riding at a higher speed to move forward and in the rush hour she collided
into the first defendant’s rear bumper (rear light broken) and rear left side
before loosing contral of her motorcycle and falling under the lorry.
Mohd Rosle Yusof v Lye Kim Hee [1991] 3 CLJ 2177:

40
As the road was a straight road and as there was no evidence at the speed at
which either party was travelling, and taking into account the fact that the

1 collision had occurred after the overtaking of the van, the plaintiff had failed
to take steps to avoid the collision, as he must have been travelling fast as the width
of the road would have allowed him to take evasive action. If he had slowed down
and swerved to the left when he flashed his lights to warn the defendant, the
collision could have been avoided. In the circumstances of the case I find that
5 the plaintiff had failed to take steps to avoid the collision. He must have been
driving very fast.
[55] Motorcycles should avoid to weave in and out of vehicles in the attempt
to get to the front of the line at traffic junctions. Reference to the Highway
Code on this:
10
Rule 22 Following Distance

If you collide with the rear of a vehicle in front of you it is your own fault and
means that you have followed too closely. You should allow at least one car’s
length between your car and the car in front for every 10 miles an hour of your
15 speed …
Rule 23 Speed
A good river 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
20 losing control.
Rule 45 General
Motorcyclist should avoid excessive speeding and weaving in and out of traffic.
25 [56] The burden to prove the plaintiff’s case is on them and they failed to
show any contribution whatsoever from the defendants.
101. Burden of proof
1) Whoever desires any court to give judgment as to any legal right or

30 liability, dependant on the existence of facts which he asserts, must
prove that those facts exists.
2) When a person is bound to prove the existence of any fact, it is said that
the burden of proof lies on that person.
35 Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175, Federal Court:
in a negligence action the onus of proof rests wholly on the plaintiff, whether
or not the defendant gives evidence. The plaintiff cannot succeed without proof
of the defendant’s negligence. Evidence is a foundation of proof, with which
it must not be confounded. Proof is that which leads to a conclusion as to the
truth or falsity of alleged facts which are the subject of inquiry. Evidence, if
40
accepted and believed, may result in proof, but it is not necessarily proof of
itself.
Mariapan Kasinathan v Muhamad Hassan Siran & Anor [2014] AMEJ 1016; 1
[2014] 1 LNS 883:
The principle as regards the burden of proof on the plaintiff in an action for
damages based on negligence is well established. In the oft cited landmark case
of Ng Chua Sia v Maimon bt Ali [1983] 1 MLJ 110; [1982] 1 LNS 95, Hashim Yeop 5
A Sani J (as he then was) stated lucidly that:
“ The onus of proof is on the plaintiff … when an accidental harm is done

it is not for the doer to excuse himself by proving that the accident was
inevitable and that there was no negligence on his part. It is for the person
who suffers the harm to prove affirmatively that the accidental harm was 10
due to the negligence of the other person …”
[57] The space was sufficient for the plaintiff to move forward but her act of
riding in between the lorry and car caused this accident. It was the plaintiff
who was intending to move forward from the rear and should have exercised
proper control of her motorcycle to avoid this accident. The plaintiff when 15
moving straight ahead must give way to vehicles in front of her. Therefore
on a balance of probability I find that liability is totally against the plaintiff
and there is no contribution from both the defendants in this accident and
the plaintiff’s claim was dismissed accordingly.
20
Quantum (on a 100% basis)
[58] The amount of award given by a court would depend on each case.
Damages for personal injuries are given merely to compensate for the injuries so
that the plaintiff can lead a better life post injury. Cases below were referred to:
25
i. Ku Jia Shiuen & Anor v Kerajaan Malaysia & 3 Ors [2013] 1 PIR [47];
[2013] 9 CLJ 489:
It is settled law that damages in tort are not meant to be punitive; neither
a reward. Damages are meant to be a form of compensation that will give the
injured party reparation for the wrongful act so far as money can compensate. It 30
is not meant to enrich the injured party. Therefore, the compensation must by
fair, reasonable and adequate but not excessive (Yang Salbiah & Anor v Jamil
b Harun [1981] 1 MLJ 292; [1981] 1 LNS 106). The aim is to put the injured
party back as it were, as far as possible to his original position prior to the
tortuous act which caused the damage (Shanmugam Gopal v Zinal Abidin
Nazim [2003] AMEJ 0023; [2003] 3 MLJ 76; [2003] 8 CLJ 729; Ong Ah Long v 35
Dr S Underwood [1983] 2 MLJ 334; [1983] 2 CLJ 198; [1983] CLJ (Rep) 300).
ii. Mariam bt Mansor v JD Peter [1975] 1 MLJ 279:

in considering what compensation the court shall award, it is impossible
to arrive at an accurate figure, however, all the court can do is to award
40
her a sum which would compensate her for pain and suffering she had
undergone and will, in all probability, continue to undergo. I feel that
the sum awarded should be a fair sum to compensate the plaintiff for the

1 injuries suffered, but it should not be too excessive to constitute an injustice

to the defendant. It is trite law that any claim for special damages must be
specifically pleaded and strictly proved as opposed to general damages
which is subject to assessment (see Sam Wun Hoong v Kader Ibramshah [1981]
1 MLJ 295 at 297; [1981] 1 LNS 103, FC). In Yeap Cheng Hock v Kajima-Taisei
5 Joint Venture [1973] 1 MLJ 230 at 236; [1971] 1 LNS 155 Syed Agil Barakbah J
held:
“ The general principle is that the plaintiff must be prepared to prove his
special damages unless it has been agreed. It is not enough for him to
write down the particulars and leave them for the court to decide. It is
10 for him to prove them.”
[59] An award is made (on a 100% basis) based on reference to the latest
Compendium of Personal Injury Awards as a guide, submissions by all parties
as well as relevant case laws.
15 General damages assessed as below
(1) Below elbow amputation – RM70,000.00
[60] The plaintiff proposed RM70,000.00 for this injury and the defendant
proposed RM50,000.00. The Compendium suggests an award within the range
20 of RM49,500.00 to RM55,000.00. This court allowed an award of RM70,000.00
as fair and reasonable based on this decision – Ahmad Sairan b Yusak & 8 Ors
v Khoo Hun Cheong & Anor [2014] 1 PIR [69].
(2) Above knee amputation – RM80,000.00

25
[61] The plaintiff proposed RM85,000.00 for this injury and the defendant
proposed RM80,000.00. This court allowed an award of RM80,000.00 as fair
and reasonable based on the recent decision in – Uthayakumar M Subramaniam
v Ang Teng Bee [2016] 2 PIR [57]; [2016] 1 LNS 1214. This award is well within
the range of awards proposed by the Compendium and is within the trend
30 of recent awards for above knee amputation.
Special damages assessed as below
Item (a) Cost of police documents – solicitors’ cost
35 Item (b) Cost of medical report – solicitors’ cost
Item (c) Medical cost – withdrawn
Item (d) Prosthesis cost for lower limb

Item (e) Prosthesis cost for upper limb – RM150,000.00 (for both limbs)
40
[62] For this claim for prosthesis for the lost of two limbs, both parties have
produced a quotation for an appropriate amount according to their evaluation
of what is the best prosthesis which should be used by this plaintiff. The 1
plaintiff here is a very young girl, who is pursuing diploma at UiTM. The
prosthesis report produced from Limb Tech Prosthetics & Orthotics (for the
plaintiff) and Teh Lin (for the defendant) with the relevant recomendations
for prosthesis with costs. 5
Limb Tech prosthesis (SP6)
[63] The prosthesis report produced by the plaintiff recommends transradial

myoeletric prosthesis (P11). The plaintiff then went on to state that SP6 is an
expert witness giving expert evidence on prosthesis. The first defendant’s 10
counsel had at the very outset placed an objection on this issue. The plaintiff
failed to adhere to the requirement under Order 40A r 3 of the Rules of Court
2012 which stipulates the requirement for expert evidence but also failed to
show how SP6 is an expert at all. Based on evidence before this court, SP6 is
employed as a workshop manager (reference to his work permit) in a company 15
belonging to his wife who works as a radiographer in a hospital in Penang and
clearly his attendance in court is to give a quotation for a type of prosthesis.
To be called an expert, the witness must have the necessary qualifications or
skills and in depth knowledge in the area professed. However from evidence,
SP6 was merely employed as a workshop manager and has never sold nor
manufactured any prosthesis (including this type of prosthesis recommended 20
to the plaintiff) but merely provides for services of the said prosthesis. There
was not a single receipt produced to show if he had prior to this sold the type
of prosthesis recommended to the plaintiff. The qualifications obtained by
him was also questionable and does not show his expertise to recommend this
myoelectric prosthesis for this plaintif. This witness is present in court to give 25
a quotation for a product (transradial myoelectric prosthesis) recommended
by him for this plaintiff.
On the type of prosthesis recommended: Transradial myoeletric prosthesis (P11)
[64] SP6 recommended a transradial myoelectric prosthesis and his 30

report was tendered and marked as P11. He was questioned on the method
of assessment which he had done on the plaintiff before making such a
recommendation. This court finds that the report (P11) did not state if the
assessment done had considered if the product was suitable for her skin
condition or suitable for her daily use at all. SP6 himself had clearly stated 35
in court that this type of prosthesis is rare in Malaysia:
Q: What experience in India myoelectric in India?
A: Yes in India and Saudi I did fit this type. In Malaysia its very rare. Another factor
is the affordability.
40
Q: On the bionic arm D16 – was this prepared for the trail?
A: No. It was prepared in January for another patient.


1 [65] Further evidence was lead to show that this type of prosthesis was
heavy but also expensive on the maintenance aspects of it. Why recommend
something that is rare and expensive and difficult to maintain? The assessment
done by SP6 did not consider all this in P11 especially to determine the
5 suitability with her skin condition or on the weight and maintenance aspects.
Therefore there can be no way to determine if this type of prosthesis would
be a success or a failure. SP6 was unable to answer with certainty on the
mobility predictor (ability of the patient to move around using the type
recommended) this should have been part of his assessment to determine if
the plaintiff would be comfortable using this type of prosthesis. SP6 clearly
10
stated that it was not done:
Q: That amputee mobility predictor not mention in your report?
A: Yes agree.
15
[66] SP6 was shown various medical articles on occupational therapists (D26),
electromyography (“EMG”) (D27), and orthopaedic rehabilitation (D28) on the
requirements to perform an electromyography and nerve conduction study
to determine the suitability of the myoelectric prosthesis for this plaintiff.
An EMG is a procedure to measure muscle response or electrical activity in
20 response to a nerve’s stimulation of the muscle. The test is used to help detect
neuromuscular abnormalities (D27). This should have been done immediately
after amputation to determine if her body would be able to send signal to
the myocardial prosthesis. The orthopaedic surgeon called by the plaintiff,
Dr Chong Kheng Lin (P7) clearly stated that he was not aware if an EMG
was done on this patient and he also did not make any recommendation for
25
a suitable prosthesis for this plaintiff:
Q: After she was discharged what kind of prosthesis was suitable?
A: I won’t know.
30 Q: No EMG done?
A: Not that I am aware of.
Q: Yours is a medical report?
A: Yes.
35
[67] Since the EMG was done to determine the suitability of this type of
prosthesis therefore the question then arises then is this type suitable for this
plaintiff. The purpose of making an award for prosthesis is to provide for the
plaintiff the best possible replacement so that she can live her life as normal as
40 possible. Based on evidence this type has more problems attached to it. The
burden is on the plaintiff to show to this court that the type recommended
is the best for her. SP6 also stated that the myoelectric prosthesis is prone to
breaking down and has high cost of maintenance:
Q: This myoelectric has the likelihood of breakdown? 1
A: Yes depends on the origin of country.
Q: Besides cost factor and weight factor the maintenance is high?

5
A: Yes.
Q: Have you made a comparison in your report to a conventional prosthesis and myocardial
and to see which is suitable?
A: No.
10
Q: You only quote for myocardial prosthesis?
A: Yes.
Q: You say that plaintiff was never fitted with myoelectric prosthesis and you
agreed with me?
15
A: Yes.
Q: Cdng – therefore we cannot know if she can take the weight of this prosthesis?
A: Yes agree.
Q: Cdng – we cannot know if her body can accept this prosthesis? 20
A: Yes.
Q: Rujuk pada artikel mengenai prosthetic … it should be done to say if it fits?
A: Theoretically should be done. I did not do it because it should be done by doctors.

25
Q: Cdng – immediate of early post-operative fitting?
A: Yes but not done.
[68] Therefore if this type has problems, difficulties and expensive to

maintain then why recommend it. This court finds that SP6 was unable to 30
explain to the satisfaction of this court as to why he is recommending this

type of prosthesis for the plaintiff. The burden was on the plaintiff to prove
what they ask for. This court cannot accept the reasoning given by SP6 that:
Q: But you did not allow her to use this to see if her body can accept this prosthesis? 35
A: Yes agree but not fitted on her. I do not see why her body should not accept this.
Based on the present facts, the plaintiff is suffering from a skin condition
and expert evidence was lead to show that this type will further aggravate
her skin problem. The plaintiff is entitled to the best prosthesis that would 40
suit her and make life easier for her. The main concern here is what should
be the best prosthesis suitable for this plaintiff taking into consideration her
skin condition.

1 What prosthesis is suitable for this plaintiff?
[69] Both the prosthesis report (Limb Tech and Teh Lin) tendered in court
merely gave recommendations for prosthesis for this plaintiff. The main concern
here is in making the best award for this plaintiff based on the suitability.
5
The defendant called medical experts and rehabilitation specialist (report by
Dr Ooi) to give their expert opinions on the best prosthesis for this plaintiff.
Reference to the medical and rehabilitative reports as below:
Dato’ Dr Ramanathan @ Manickam a/l Ramiah, Consultant Orthopaedic Surgeon

10 from Hospital Raja Permaisuri Bainun, Ipoh, dated April 20, 2016
[70] Dato Ramanathan (“DW6”) is a medical specialist and was called to

give his expert evidence on the prosthesis best suited for this plaintiff. The
plaintiff was examined on March 2, 2016 and the report was dated April
20, 2016. DW6 is a government specialist with 35 years of experience in this
15
field. His expertise was never challenged by the plaintiff. The requirements
under the law has been complied with and the report was marked as D41.
Reference to D41:
Medical opinion
20 Prosthetic use is not for everyone and upper limb amputees are more likely to
choose not to use prosthesis. The amputee becomes more and more adapt at one
handed work pattern and the prosthesis use may become more frustrating and
difficult experience. My personal work experience as well as discussions with local
suppliers has revealed a poor compliance with long term use of unilateral upper
limb prosthesis, other than for cosmetic purposes.
25
The lower limb prosthesis however, is mostly to bear the body weight and to
ambulate. It needs to be sturdy and stable. It is not necessary for purposes of
athletics or games. Her obese body structure and the skin condition of atopic
dermatitis may frequently cause ulcerations which may require her to rest the
stump away from prosthesis. So a simple above knee prosthesis will be the most
suitable for her with least mechanical and no electric parts.
30
In conclusion
On the day I examined her, I observed that she has Atopic dermatitis quite
extesnsive and was informed that she is also an asthmatic (both being part of an
allergic condition since a very early age in her life).
35
I have discussed her case with out rehab specialist and note she is comfortable ambulating
with the left lower limb prosthesis (model: left trans-femoral amputation prosthesis: Simple
socket, manual valve, rotator simple axis motion foot, easy fit with suspension
belt) without needing anymore support.
As for the upper limb, she is still not on any prosthesis. She may need a cosmetic
40 prosthesis which is simple and practical solution.
I have the read the suggestion in my report by Mr. Ashutosh who is orthotic
technical specialist and subsequently discussed at length with out rehab team. I
would like to remark that our discussion was in line with practicality and ease of use of 1
prosthesis for Syazwani. She is now comfortable with the prosthesis fitter to her left thigh.
A Myo-eletric prosthesis will only make it heavier and more difficult to learn and adapt. It is
also prone to computer electronic-chip breakdown, frequent motor and hydraulics
failure. This means time away for repairs to send or wait for parts from overseas. 5
The simpler the device, the faster the adaptability with least interuptions. I have
also discussed with Syazwani and her mother and we seem to be in agreement.
She is now 18 yrs old. A prosthesis similar to the one fitted on her (has a knee joint and
ankle joint) will cost about RM10,000 to RM12,000. This may need replacement every
10
5 – 10 years meaning a maximum of 5 – 10 changes in the next 50 years by which time
she should be about 70 years of age. As for the cosmetic right upper limb prosthesis, it
should cost between RM5,000 – RM10,000 and this may not go through the same wear
and tear as the lower limb prosthesis and may only need resizing for change in the body
size; more like 2 – 3 cahnges in her lifetime. Many a times the request is to get the most
expensive prosthesis but experience shows that many patients actually do not wear it and
consequently the expensive device ends up on a shelf. 15
Opinion on quotation from Limb tech Prosthesis & Orthotics

The weight and possible physical discomfort issue with such a prosthesis will be
probably poorly accepted by her.
20
[71] DW6 testified during cross-examination on the fitting and the suitability
of the myoelectric prosthesis for this plaintiff. The difficulties attached to
this type would cause more problems to this plaintiff as it has a tendency to
breakdown frequently and it would mean she will have to spend more time
away for repairs:
25
Q: You do make recommendations for prosthesis?
A: Yes.
Q: Fittting and suitability done by prosthesis?
A: It is done in my clinic under my supervision. I oversee the fitting. As an orthopaedic 30

surgeon it comes under my supervision.
Q: Does it come as separate work for rehabilitation and orthopaedic surgeon for
prosthesis?
A: Difficult to seperate work. 35
Q: Rehabilitation specialist would be in a better postion than you to make recommendations?
A: Cannot completely agree on that because we see patients and make recommendations
and there is any changes it can be enquired from the rehabilitation specialist.
Q: What is myoelectric arm? 40
A: Is articifial gadget fixed for below elbow amputation whereby when she
contracts her muscle it will stimulate the chip in the gadget which will then

1 progress to move the motorised device of the hand for the hand to grip and
open something.
Q: So for instance can she hold a pen?
5 A: No. It is to grip bigger objects such as holding a glass.
Q: Conventional prosthesis?
A: There are three types – cosmetic hand which has no function but fits the color
of skin and fingers which does not move, second type is which is body powered
prosthesis which uses the muscle movement at shoulder and elbow to move
10 a lever to move the hand to grip and close it. It is to move and hold but not to
rotate.
Q: Plaintiff is in college – when it comes to employment would myo-electric hand

be more helpful or the conventional hand?
15
A: Myoelectric and the body powered function is the same, both requires body
strapping the is bigger and bulkier and the computer chip can frequently fail, many
parts have to be changed once in two years or sometimes annually and the chip gives
way and for technical assistance have to look for expertise overseas, these expertise not
freely available in Malaysia.
Q: The myoelectric hand is easier to use?

20
A: Not really because it is very bulky and heavy and patients sometimes feel
frustrated because it is very mechanical and they will take it off and keep it
in shelves.
Q: Would it be helpful for this plaintiff?

25
A: Most patients prefer cosmetic hand. I have not seen any of my patient using this arm.
But from my experience attending talks and conferences, there are problmes associated
with this type. I have recommended this but because of the problems and I get
feedback that it is not good.
Q: Any patients which have told you that they are not using this?
30
A: Not seen. Which means that many are not using this in the country.
Q: Ashutosh – recommended myoelectric hand suitable for this – do you agree?
A: Disagree when I see patients they are more comfortable with the conventional
ones. Mr Ashutosh is commercially employed for sale of this gadgets. I have
35
seen his reports he has mentioned disabilities but his recommendation is not
completely wrong for this but it does not help with the present technology.
Most patients prefer simple prosthesis.
[72] DW6 is an independent expert from a government hospital who

under cross-examination was very firm in his answers that the myoelectric
40
prosthesis would not be suitable due to the many problems attached with
this type. Despite this difficulty, the plaintiff also has atopic dermatitis and
is asthmatic and therefore this prosthesis would worsen her skin condition
and it is also heavy and bulky and recommends a cosmetic prosthesis which 1
would be more practical for her. He testified that the plaintiff is already using
her left hand for her daily activities:
Q: You are denying her an opportunity to try new type of hand? 5

A: I am not denying her this hand but it is not the best type.
Q: Cdng – at present moment you not sure if the myo-electric hand is helpful to
her?
A: Condition of skin of this patient is that she has an allergic condition since childhood and 10
she has rashes and by wearing this device with electronic gadget with computer chip
will cause more problems and will deter her from wearing it again. She can still wear
something in between as a protection for the skin but it will still will cause problems.
It may cause bacterial infection and again will prevent patients from wearing it.
Q: This arm is heavy but Mr Ashutosh said that it is lighter than most other
15
conventional types?
A: I am not sure of this. Lighter is one factor but taking into consideration it has
a computer chip together with other factors, will cause problems.
Q: You saw this plaintiff on March 2, 2016 – what prosthesis she was using at that
time? 20
A: She was on a wheel chair and not using any prosthesis. I asked her and she
said she was comfortable on a wheel chair.
Q: Did you ask her if the prosthesis was comfortable for her?
A: Yes I did and she said she was happy with it. I even confirmed this with Dr Ooi 25
and she also said that plaintiff was happy with it.
[73] DW6 also testified that he had discussed this matter with his
colleague (Dr Ooi) who is a rehabilitation specialist and Dr Ooi had in her
report merely gave a suggestion of the type of prosthesis which the plaintiff
30
should use. DW6 assessed the plaintiff’s condition in great detail before
preparing his opinion in D41. This can be seen as there were consultations
between himself (as an orthopaedic surgeon) and Dr Ooi (as a rehabilitative
specialist) before deciding what is best for this plaintiff. DW6 very clearly
stated that the myoelectric prosthesis is not the best type for this plaintiff:
35
Q: You are denying her an opportunity to try new type of hand?
A: I am not denying her this hand but it is not the best type.
Dr Ooi Ai Lee a rehabilitative specialist from Hospital Raja Permaisuri Bainun,

dated May 23, 2016 40
[74] The examination was done on April 25, 2016 and the report was dated
May 23, 2016. The report is reproduced below for ease of reference:

1 … She was assessed for right transradial prosthesis and she should be considered
for transradial myoelectric prosthesis. However, further assessments is needed which
includes consultation with certified prosthesis and orthotist with experience on
testing the suitability and training of myoelectric prosthesis.
5 Otherwise with her current condition, she has been independent including
attending higher learning institution. She was able to adapt as the institution she
was attending has accessibility for her disability …
[75] Dr Ooi’s report (D44) was prepared after discussion with DW6 and
made a suggestion for a myoelectric but but qualified it by stating that:
10
further assessment is needed which includes …
This means that further assessment is required to determine if the myoelectric

prosthesis is the best for this plaintiff. This cannot be taken as a recommendation.
15
Datuk Dr Yeoh Poh Hong, consultant orthopaedic surgeon from Pantai Hospital
Kuala Lumpur, dated October 13, 2016
[76] Dr Yeoh (“DW5”) is a medical specialist and he was called to give his
expert evidence on the prosthesis which is best suited for this plaintiff. The
20 requirements under the law has been complied with before marking of his
report as D39. His expertise was not challenged by the plaintiff.
[77] DW5 testified that the myoelectric prosthesis is not suitable for this
plaintiff as no EMG and NCT test which was supposed to have been done
immediately after amputation but was never done. He recommended a
25
conventional above knee prosthesis (Jaipur Knee) and disagrees with the
prosthesis recommended by Limb Tech and Teh Lin as they are both based
on commercial interests and not for rehabilitation purpose. DW5 testified that
if she was fitted with the myoelectric prosthesis, she would only be able to
hold larger objects and will have difficulty to grip smaller objects. Reference
30 to his report dated October 13, 2016:
I also agree that myoelectric prosthesis has a lot of problems as indicated in my opinion.
They are extremely expensive to purchase and to maintain and the absence of
support staff will mean that the prosthesis will be discarded at its first failure.
35
They have less durability and is susceptible to easy damage; they cause skin problem and the
heat built up caused by the socket and technical failure can cause injury to the amputation
stump; it is also difficult to control and there is an absence of specialist clinic in this region;
with regards to the above knee prosthesis that had been fitted to her and which
apparently appears to be producing encouraging results…
As mentioned in my report the organization producing the Jaipur knee is currently

40 the world’s largest supplier of artificial limbs and with the thousands of above-knee
prosthesis that had been supplied, it had shown high percentage of compliance where
79% continues to use the prosthesis. The non-failure rate is also high at 95% and satisfaction
rate by amputees is 86%. …
I do not have any disagreement with Dr Ooi Ai Lee’s report of the rehabilitation 1
department and he appears to be optimistic about the prognosis of this patient.
He expects her to be fully independent in due course. He mentions that Hospital
Raja Permaisuri Bainun is supplying her a prosthesis under ATM Veteran Aid. ….
I however, do not agree that she should be considered for transradial myoelectric
for reasons which Dato Dr Ramanathan and I have stated. 5
With regards to the quotations from the Lin Prosthetic & Orthopaedic Co. my
comments are the same as the quotations from Ashutosh Gawande which are
not entirely credible as they appear to only give one choice which is the most
expensive. It will be more professional to give a range of possible solutions. I
would note that the cost quoted would mean that amputees will never be able to 10
afford artificial limbs.
[78] DW5 recommends the use of Jaipur Prosthesis which is much better and
cost effective for this plaintiff with due consideration to her skin condition. He
went on to elaborate at great length on the Jaipur Prosthesis and his reasons
for recommending it during cross-examination: 15
Q: Cdng – Jaipur Foot can only be obtained in India?
A: No you can get it from US and Canada.
Q: What is the cost of Jaipur Foot in US? 20
A: USD90.00 refer to article in 2013.
Q: This Jaipur Foot or Knee what material is used?
A: Polycentric concept and is designed using the four-bar linkage geometry. It is made from
oil-impregnated nylon. It comprises an upper and lower body block, two side linkages 25
and a mid linkage, helf together by four steel bolts. The body blocks have segments for
socket and pylon attachment.
Q: You said steel bolt, so does it mean that is is heavy?
A: No.
30
Less durable and is susceptible to easy damage, they cause skin problmes and injuries
due to technical failures amd is difficult to control and in the absence of specialist clinics
to repair it , it is not user friendly.
Q: Do you agree that patients’ have to be given a choice?

35
A: Yes.
His expertise was not challenged by the plaintiff.
Q: What do you find with myoelectric arm?
A: I have never seen a case of patient fitted with this kind of arm. It is very complex 40
and it is not suitable for all people. However before using this kind of arm the patient
must have to do the electromygraphy to determine the nerve condition before fitting.
She may not be suitable for this.

1 Q: Soalan 9 – you recommend Jaipur foot and have relied on some articles on
this – please explain who is this Bhagwan Mahavir?
A: BMVSS is an organisation in India and part charity and part medical. 30 to 40

years ago they had many amputees in India and they designed prosthesis, so
5 now they are the largest distributer of prosthesis in the world. US and Canada
have marketed their prosthesis products. They have done many research and
their products are really good in terms of reliability and in terms of patients’
satisfaction, most remarkable point is the cost and could assemble it within
half an hour. In Malaysia 19 years ago Sunway Rotary Club found out about
this and made it their project working together with Hospital Tunku Ampuan
10 Rahimah and every year it is supplied for free and for those who can afford it
will pay for it. Therefore I suggest Jaipur Knee and since it is affordable and service
can also be done easily.
[79] He testified that a rehabilitation specialist will have to work together

with an orthopaedic specialist to make recommendations on what is suitable
15 for a patient. DW5 with 41 years of experience has never seen anyone in
Malaysia using this prosthesis. He also testified that this type of prosthesis
has a high incidence of failure, is expensive and unsuitable for this plaintiff:
Q: In your 41 years of experience – have you seen any patient using myoelectric
arm?
20
A: No. Upper limb not common but lower limb many. All my patients use mechanical
arm.
[80] So much has been said by all the medical and and rehabilitation specialist
(in the report) of the problems attached to this type of prosthesis. The plaintiff
25
failed to challenge DW5’s evidence on this issue.
[81] In conclusion, I am of the view that the experts have explained as

greath length on the difficulties and problems attached to the myoelectric
prosthesis. The plaintiff failed to prove their claim for this type of prosthesis.
30 The pertinent question here is what is best for this plaintiff? What good would
a high tech prosthesis do for a plaintiff if it frequently breaksdown, difficult
and expensive to maintain and would further aggravate her skin condition?
and from evidence is rare and still new in the market:
Q: The myoelectric is a high tech gadget?

35
A: Yes but it is liable to break down.
Q: Have you come across any person using this?
A: No because this is rare and still new in market.

40
There is also a lack of local expertise to deal with repairs of this prosthesis.
There can be no justification to recommend something which is rare and
expensive and would cause a lot of difficutlies to the plaintiff when the the 1
plaintiff is already adapting well and moving on with her life as she is currently
pursuing her studies in diploma in accountancy since December 2015 in UiTM
and is already independent in her daily activities. The myoelectric prosthesis
cannot be be used to write or hold a pen as seen from evidence above and 5
she is already training to use her left hand for daily chores. The experts have
commented that she is very independent and a highly motivated person.
These are independent experts with the best interest of the plaintiff in mind
before making recommendations on the best on a long term basis.
10
[82] The opinion given by DW6 on the cost of prosthesis was never challenged
by the plaintiff therefore it will accepted as evidence – Seng Chong Metal
Works Ltd v Lew Fa [1966] 2 MLJ 63. The cost of prosthesis based on Dato’
Dr Ramanathan’s report:
Lower limb prosthesis – RM12,000.00 x 10 changes = RM120,000.00; 15
Upper limb prosthesis – RM10,000.00 x 3 changes = RM30,000.00.
Total for prosthesis – RM150,000.00.
Item (f) Nursing care – dismissed 20
[83] This claim was dismissed for the very reason that is was not proven that
indeed this plaintiff needs care. Based on the facts of this case, the plaintiff
is an independent young girl who has left home to pursue her education at
UiTM. She currently stays at the UiTM hostel and receives help from her
friends for some chores. The plaintiff called her sister (“SP5”) to testify on this 25
claim fro nursing care. From evidence the plaintiff stays at the hostel whilst
SP5 is at home. The plaintiff only returns home on weekends of during breaks.
Therefore this claim for nursing care failed to be proven by the plaintiff. This
is a claim under special damages and must be strictly proven:
30
Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177 at 178:
Plaintiffs must understand that if they bring actions for damages it is for them
to prove their damages; it is not enough to write down the particulars, and so
to speak, throw them at the head of the court, saying: “This is what I have lost;
I ask you to give me these damages.” They have to prove it.
35
[84] The experts Datuk Dr Yeoh have also made comments on this plaintiff as
being a highly motivated and independent person. Reference to his evidence:
Q: Does she need any modification to her house or vehicle as an amputee?

40
A: No. Because she can do everything as noted by other specialist. With right arm amputated
she can still do all her chores.

1 Q: You have examine her and what is suitable for this plaintiff?
A: Without prosthesis she is functioning very well and I find her to be a highly motivated
person. She lost her right hand and had already started to write with her left hand and
she could even operate a computer. She did not come to me for prosthesis leg as she
5 already had prosthesis supplied to her from the hospital. The best prosthesis
is still a subjective matter but most importantly it must be an appropriate type
and the appropriate type would be the mechanically operated one. Jaipur does
not make arm only leg and for her leg, Jaipur will be most suitable.
[85] Dr Ooi Ai Lee in her report also made comments on this plaintiff and
10 did not make any recommendations for nursing care:
youngest among 6 siblings and pursuing a Diploma in Accountancy since December

2015 in UiTM. She is staying in a disability accessible room provided by the hostel
in UiTM. She was independent in her personal activities of daily living which included
grooming, shower, toileting, dressing upper and lower garments. For indoor mobility,
15 she was able to hop with her righ lower limb without aids. However for outdoor
mobility, she was able to self-propel a manual wheelchair at even elvel. She only
walked with her left transfemoral prosthesis which was supplied of 4th December 2015
with a left forearm crutch when she attended the outpatient rehabilitation medicine clinic
appointments. She was able to don and don off her prosthesis independently.
20 [86] Therefore this claim for nursing care was dismissed.
Item (g) Loss of prospects of marriage – dismissed
[87] This claim for loss of prospects of marriage was dismissed as there
was no evidence lead to show that there was loss in prospects of marriage.
25 Therefore the case of Saniah & Ors v Abdul Hamid & Ors [1967] 2 MLJ 255 is
not applicable as no evidence was raised during trial to prove this. Therefore
this claim was dismissed.
Item (h) Loss of earning capacity – dismisssed

30
[88] A claim for special damages must be strictly proven otherwise it will
fail. There was no evidence raised during trial of her being gainfully employed
at the time of accident. If at all from evidence it was shown that she was a
student and is currently pursuing her tertiary education at a local university.
Therefore this claim too must fail.
35
[89] The awards made out to the plaintiff here is a fair and a justified figure as
the very true meaning of compensation as a result of an injury is to compensate
a person not only for the pain and suffering but also for the difficulties or
disabilities which he now has to endure. The amount of money given out as
40
compensation would entirely depend on the facts of each case. Case laws and
the compendium were taken as a guide for the amount of award to be given:
Mariam bt Mansor v JD Peter [1975] 1 MLJ 279: 1
in considering what compensation the court shall award, it is impossible to

arrive at an accurate figure, however, all the court can do is to award her a
sum which would compensate her for pain and suffering she had undergone
and will, in all probability, continue to undergo. I feel that the sum awarded 5
should be a fair sum to compensate the plaintiff for the injuries suffered, but it
should not be too excessive to constitute an injustice to the defendant …
Therefore the award given above would definitely compensate the plaintiff
for her injuries and the difficulties which she has to endure.
10
[90] Cost to the plaintiff and interests on special damages run with 2.5%
interest per annum from the date of accident to the date of judgment, general
damages with 5% interest per annum from the date of the summons was
served until date of judgment and 5% per annum on total judgment sum
from the date of judgment until date of full settlement. 15
20
25
30
35
40

20181PIR59 - Limb Tech 2018 Case

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[2018] 1 PIR [59] 563

[59] Quantum – Amputation – Above knee amputation – Below elbow amputation

Date of grounds of judgment

Brief description of plaintiff’s injuries

Award (Based on 100% liability) 1

Cases referred to by the court 25

Legislation referred to by the court

The plaintiff’s version

The first defendant’s version

The second and third defendants’ version 1

Findings on the issue of liability

Q: Apakah kerosakan lori?

A: Tayar belakang kanan pancit.

Q: Rujuk gambar-gambar kereta di ms 16?

A: Sebelah kiri pintu dan bumper ada kesan.

Q: Ada kerosakan bahagian belakang kereta?

A: Motorsikal rosak di bahagian belakang lampu pecah, rim belakang bengkok,

Q: Rujuk gambar motorsikal ms 11, 12 dan 14 ada kerosakan depan?

Q: ID2C dan D motorsikal jatuh di tengah jalan?

10 A: Ya selepas diseret dan dilanggar lori.

Q: Cdng – sebagai pegawai penyiasat tidak munasabah bahawa defendan memotong

Q: Selain dari kenyataan kamu tiada bukti rosak pintu kereta?

Q: Cdng – kenapa keluarkan kompaun kereta itu?

Q: Ikatan A ms 8 laporan polis defendan ketiga – peguam bacakan – adakah

D1 tunjuk pada mahkamah untuk diteliti sama ada ia konsisten.

Q: Bila percakapan diambil?

Saksi rujuk pada IP dan nyatakan pada Februari 14, 2015.

Q: Rujuk ms 7 adakah ia konsisten dengan percakapan? 25

Q: Bilakah ini diambil?

A: Pada Februari 27, 2015.

Q: Mukasurat 6 adakah ini konsisten dengan laporan polis?

Defendant tunjuk pada mahkamah untuk diteliti.

Mahkamah meneliti dokumen tersebut dan dapati ia konsisten.

i. Mohamed b Kasdi v PP [1968] 1 LNS 78:

The police photographs 1

[15] The plaintiff’s bundle of documents had 30 photographs (from pp 10-23)

Q: Gambar polis berapa keping? 10

Q: Ada rekod gambar?

A: Saya arahkan jurufoto gambar. Tiada rekod berapa gambar diambil.

Q: Ada kamu ambil gambar?

Q: Kamu sentiasa bawa kamera? Di mana kamera kamu sekarang?

A: Tiada bukti sebab kamera hilang. 25

Q: Kenapa tidak ambil gambar motorsikal keseluruhan?

Q: Selepas ambil gambar adakah kamu cek?

Q: Depan kereta tiada kerosakan?

Q: Gambar M dan N diambil di mana? 1

ID2 jadikan P2 14 keping gambar A-N sahaja.

[21] The other photographs in the plaintiffs’ bundle of documents of the

… ketika itu saya tiada dan jurufoto ambil gambar sendiri.

Q: Rujuk ID12C, E, J, O, Q dan U ia tidak menunjukkan fok motorsikal?

Q: Kenapa tidak ambil gambar motorsikal keseluruhan?

A: Ya ada, saksi tunjuk pada atas tangki minyak.

Q: Adakah disebut kesan calar?

Q: Mukasurat 4 perenggan akhir, selepas impak motorsikal jatuh di laluan lori,

A: Ya selepas di seret dan dilanggar lori.

Q: Cdng – sebagai pegawai penyiasat tidak munasabah bahawa defendan memotong

Q: Depan kereta tiada kerosakan?

Q: Selain dari kenyataan kamu tiada bukti rosak pintu kereta?

A: Saman pada defendan. Daripada keterangan dan rakaman percakapan, pemandu

Rule 10. Drivers not to sleep.

1 Q: Kamu kata hantar saman?

Q: Kamu hantar saman secara pos?

Q: Adakah defendan bayar kompaun?