Judgment - The High Court of Sabah & Sarawak

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MALAYSIA
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[KCH-12B-7-2011]
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KUCHING
CASE NO.: KCH-12B-7-2011
BETWEEN
MAGGIE ANAK ROBERT KAWIE
Flat 61, Tingkat 2, Blok 2, Flat Polis,
95000 Sri Aman.
WESLY ANAK STEWARD DAWI
Sub Lot 720, Taman Samarindah,
Jalan Datuk Mohd Musa,
94300 Kota Samarahan. ... APPELLANTS
AND
HAKIM BIN KAWI
(The Administrator Of The
Estate Of EDIE BIN HAKI)
Kampung Sebandi Ulu, 94600 Asajaya.
KHAIRUL RAJINEN BIN BRAHIM
Kampung Tambirat, 94600 Asajaya. ... RESPONDENTS
JUDGMENT
This is an appeal against the decision of the Sessions Court Judge in a
personal injury case. The Sessions Court Judge found the plaintiff liable and
awarded damages. She awarded damages of RM111,700.00 in favour of the
1 st plaintiff and damages of RM101,180.50 in favour of the 2 nd plaintiff. The
appeal is against quantum and liability. I shall refer to the appellants and
respondents by the original designation of plaintiffs and defendants.

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Brief Facts
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The accident occurred along Jalan Datuk Mohd Musa on 10 th September
2006. The 2 nd plaintiff was the pillion rider. The rider of the motorcycle is
the son of the 1 st plaintiff. The motorcycle was involved in head-on collision
with a car that came from the opposite side of the road. The rider of the
motorcycle died on the spot. The 1 st plaintiff has brought this action as the
administrator of the estate of the deceased. The 2 nd plaintiff survived the
accident although he sustained serious injuries. The 1 st defendant is a Lance
Corporal who was attached to the Kota Samarahan Police Station. He was
driving alone after attending a police “Jasamu Di Kenang” function in Kota
Samarahan. The car was registered in the name of his wife who is also a
police personnel. The evidence of the 2 nd plaintiff is that the car encroached
into the path of the motorcycle on their side of the road. The 1 st defendant on
the other hand told the court that the motorcycle encroached into his path.
The learned Sessions Court Judge found the 1 st defendant liable for causing
the accident for the following reasons. She found the 1 st defendant’s
testimony to be inconsistent. The 1 st defendant lodged the police report the
following morning. He did not mention that the motorcycle encroached into
his path. The 1 st defendant only said that he collided with a motorcycle that
travelled from the opposite direction. The investigating officer of the case,
P.W. 1, took numerous photographs of the scene. However, he could not
remember taking photographs of the debris at the scene. The Sessions Court
Judge also noted that from the serial numbers of the negatives, one
photograph, i.e. Negative 17 was missing when it was sent for processing.
From the answers of the investigating officer that he “could not recall” and
“was not sure” about the position of the debris, she surmised that there was

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some concealment of evidence in the way the case was investigated.
However, she based her decision on a rough sketch plan drawn by the
investigating officer and given to the father of the 2 nd plaintiff. The father of
the 2 nd plaintiff is also a police officer. On the way to the hospital on the
fateful night in question, he passed by the scene of the accident and noted
debris on the motorcycle’s side of the road. Later he was given a sketch plan
by the investigating officer which showed that the point of impact was on the
motorcycle’s side of the road. This rough sketch plan was admitted into
evidence as P31. The fair copy of the sketch plan prepared by the
investigating officer as part of his investigations is found at page 3 of bundle
3. The 2 nd plaintiff testified that the point of impact was as shown in P31.
The driver who accompanied the investigating officer to the scene of the
incident also testified that the deceased and the 2 nd plaintiff were found lying
on the motorcycle’s side of the road as marked in P31. Although the
investigating officer had stated that his official sketch plan (page 3 of bundle
3) was correct, he later admitted during cross-examination that P31 is the
“real” version. The Sessions Court Judge found that the 1 st defendant was
liable because of the position of the glass debris, the position of the victims
and the motorcycle in P31. She also considered the 1 st defendant an
untruthful witness because he said that he was rendered unconscious after the
accident. However, the car was found some 300 metres away from the point
of impact where he had collided into a tree. She also considered the
possibility of the 1 st defendant having consumed excessive amounts of
alcohol at the “Jasamu Di Kenang” police function. The investigating officer
did not see it fit to test the 1 st defendant for alcohol consumption the same
night. In the premises, the learned Sessions Court Judge surmised that there
was a cover up by the investigating officer. Finally the Sessions Court Judge

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considered the submission of Counsel for defendants who appear to have
conceded liability. Counsel for defendants submitted as follows:
For this matter, we leave to the court to decide on the liability of the matter
in which we humbly submit is against DW1 based on his inconsistency and
inability to question and explain further his answer adduced in court”
Decision on Liability
In my opinion, the appeal on liability is without merit. The sketch plan P31
which was acknowledged by the investigating officer (P.W. 1) as the correct
version clearly showed that the point of impact was on the motorcycle’s path.
The 1 st defendant is a police Lance Corporal. In the premises, the Sessions
Court Judge correctly noted that he should have stated in his police report
that the motorcycle had encroached into his path, if that was the truth.
Therefore, even if the Sessions Court Judge was wrong to suspect that the 1 st
defendant was drunk and that there was an elaborate police cover up, based
on the evidence of the 2 nd plaintiff, the rough sketch plan (P. 31) and the
evidence of the father of 2 nd plaintiff who saw the debris on the motorcycle’s
path, there was sufficient evidence for her to conclude that the 1 st defendant
was wholly liable for the accident. I shall therefore dismiss the appeal on
liability.
Quantum
The learned Counsel for defendants did not appeal against all the heads of
injuries and special damages granted by the Sessions Court Judge. I shall
therefore address only the relevant awards.
Dependency Claim
This is a claim by the father and administrator of the deceased motorcycle
rider (1 st plaintiff). The employer of the deceased motorcycle rider testified

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that the deceased earned monthly income of RM650 as a worker in his pastry
shop. Evidence was also tendered that the deceased and the 2 nd plaintiff
operated a burger stall on a part time basis. The learned Sessions Court Judge
accepted the evidence of the 1 st plaintiff that the deceased contributed
RM500.00 to him monthly. Counsel for defendants submitted that RM250 a
month is a more reasonable figure as there is no documentary evidence of
earnings from the burger stall. In my opinion, this award justifies
interference for the following reason. The learned Sessions Court Judge did
not make a finding on the total income of the burger stall. She merely
accepted the evidence of the 1 st plaintiff without deliberation that the
deceased earned RM500 from the burger stall. She did consider that income
from the burger stall is uncertain and unstable but this factor is not reflected
in her decision to accept the figure of RM500 as his fixed additional income.
In fact it must be noted that when the Sessions Court Judge assessed the
earnings of the 2 nd plaintiff from the burger stall, she said that RM300 a
month was reasonable. As the deceased only earned RM650 from his full
time job as pastry shop assistant, the figure of RM250 as the monthly
contribution to his parents is more reasonable. However, as Counsel for
defendants conceded in the lower court that RM300 monthly contribution is
reasonable, I shall reduce the multiplicand of RM500 to RM300. The
dependency award of RM96,000 in favour of the 1 st plaintiff is therefore
reduced to RM57,600.00.
Loss of income of the 2 nd Plaintiff
The 2 nd plaintiff did not work for six months after the accident. The 2 nd
plaintiff testified that he earned RM450 a month as a mechanic in Loong Jye
Car Service Centre. His employer told the court that he was actually paid

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RM406.25 based on the salary slip. The second plaintiff also told the court
that he earned RM500 a month from the burger stall. Counsel for defendants
submitted that the evidence of earnings from the burger stall was not proved.
Counsel for defendants only accepted the evidence of earnings from Loong
Jye Car Service Centre. Counsel for defendants submitted since the 2 nd
plaintiff has recovered well, he should only claim for 4 months pay.
However, the 2 nd plaintiff was not challenged that he did not work for six
months. The Sessions Court Judge accepted the evidence of the 2 nd plaintiff
that he earned income from the burger stall and she assessed his earnings at
RM300 a month. The evidence that the second plaintiff actually did not go
to work for six months was not rebutted. In the premises, I see no reason to
disturb the Sessions Court Judge’s award of RM4,237.50 for loss of pay for
six months based on the second plaintiff’s monthly salary of RM406.25 as a
mechanic and part time income of RM300 from the burger stall.
Pain and Suffering
Closed fracture medial malleolus right ankle
The learned Sessions Court Judge awarded RM28,000 for the above injury.
Counsel for defendants cited the following cases where a lower award was
given:
In Abdul Malik b Saad [2009] 2 PIR 11 the court awarded RM18,000
for closed fracture/dislocation of the right medial malleolus.
In Mani Selvam a/l Ponnusamy [2009] 2 PIR 6, the court awarded
RM20,000 for closed fracture of the right medial malleolus of the
ankle.

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In S Perumal a/l Shanmugam [2009] 2 PIR 8, the court awarded
RM25,000 for closed fracture of the right medial malleolus of the
ankle.
In her judgment, the learned Sessions Court Judge considered the above
awards and was aware that they are lower than the RM40,000 submitted by
the Counsel for plaintiffs based on Baharuddin B Sulong v Hiew Chong Choo
[2008] 1 PIR [40]. However, she accepted the evidence of the orthopedic
surgeon that it is difficult for the plaintiff to do heavy manual work that
involves walking on uneven ground or climbing stairs. This means that the
2 nd plaintiff suffers from residual disability. I therefore see no reason to
interfere with the award of the Sessions Court Judge.
Surgical wounds and scars
The orthopedic surgeon stated that the 2 nd plaintiff underwent surgical
procedures of open reduction, screw fixation and K-wiring of the right
medial malleolus. He said that these procedures would leave surgical scars.
Counsel for plaintiff submitted RM12,000 as reasonable damages on the
authority of Mawan ak Hasar @ Asar & Another v Lee Beng Ho & Another
[2009] 1 PIR [15]. The 2 nd plaintiff also suffered wound scars on his right
arm, elbow and ankle. The wound scars are as follows:
1. Large wound of 3 x 4 cm over PW3’s arm.
2. Partial cut of the tricep muscle and 4 superficial laceration wound
over the forearm.
3. 1 laceration wound about 2.5 cm on right hand.
4. 2.5 cm laceration over left ankle 5 medial malleolus.

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Counsel for plaintiffs submitted that RM12,000 for the above wound scars
was appropriate and had asked for a total of RM24,000 for the wound and
surgical scars. The learned Sessions Court Judge was of the opinion that an
award of RM10,000 and RM8,000 for the permanent surgical and wound
scars was appropriate. After taking into account the overlapping factor, she
awarded a total of RM16,200. Counsel for defendants submitted on the
authority of Zalinah bt Ibrahim v Ramnan b Sarman[2009] 1 PIR [55] that
RM1,000 was sufficient for the surgical scars. In my opinion this is not an
appropriate comparable as the synopsis of the report does not mention the
severity, position or the length of the scars. In Wong Kun Ho v Yap Hai Seng
& Another [2009] 1 PIR [21] cited by Counsel for defendants, the court
awarded RM5,000 for severe and permanent multiple scars. In Mohd
Bakhtiar b Md Yusop v Muhamad Anwar b Abu Bakar & Another [2009] 1
PIR [6] which was also cited by Counsel for defendants, the court awarded
RM4,000 for multiple abrasion and surgical scars. Based on above
authorities, Counsel for defendants submitted that a total award of RM5,000
for the scars was appropriate. However, the number and length of scars were
not stated in the judgment of the above cases. In the instant case, the scarring
was extensive and the learned Sessions Court Judge noted the scars were
clearly visible. I am, therefore, of the view that the award of RM16,200,
though slightly generous, is not wrong in principle. I shall therefore maintain
the award.
Two laceration wound at right elbow and laceration wound at left ankle
The learned Sessions Court Judge awarded RM8,000 for this injury based on
the case of Puspawangi Bte Hassan v Chou Hau [1993] Mallal’s Digest 734.
In that case RM8,000 was awarded for two laceration wounds at the right

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elbow. In the same case, RM5,000 was awarded for the laceration wound at
the left ankle. In another two cases, Samsaimon B Majid v Hamdan B Sian
[2009] 2009 PIR [61] and Jamal B Ali v B Ghani [2009], RM6,000 and
RM3,000 respectively for lacerations wounds on the legs. Counsel for
defendants submitted that RM4,000 is appropriate based on the case of Jahit
b Taslim v Jefry b Gumun [2009] 2 PIR [56]. The learned Sessions Court
Judge's award though generous is supported by the precedents she cited.
Moreover, she had the benefit of considering the medical evidence of the
orthopedic surgeon who described the wounds as fairly serious. In the
premises, I see no reason to disturb the award.
Multiple abrasion over right arm, elbow and hand
The learned Sessions Court Judge awarded RM5,000 for the above injuries.
In the lower court, Counsel for defendants submitted the case Wong Yee
Cheong v Toh Seng Chuan [1988] 2 CLJ 555 where the court awarded
RM2,000 for multiple lacerations and abrasion and Sulaiman bin Chik v Ang
Ah Choo [1989] 2 CLJ 492 where the court awarded RM3,500 for lacerations
and abrasion wounds. The learned Sessions Court Judge preferred the more
recent cases of Mohamad Abrar Amir Rasyid v Sykt Kerjasama Kenderaan &
Pengangkutan Ipoh Bhd [2010] 2 PIR [30] where RM8,000 was awarded for
multiple abrasion, lacerations and scars. Before me, Counsel for defendants
submitted the cases of Abdul Rahim b Md Noor v Hee Voon Hon [2009] 2
PIR [22], where the court awarded RM1,500 for multiple abrasions and the
case of Jamal b Ali v Rahmat b Ghani [2009] 1 PIR [38] where the court
awarded RM2,500 for abrasion wounds on the face, left foot and left elbow.
The report in this case is only a synopsis. There is no mention of the
seriousness or extent of the abrasion wounds. Moreover, in cases that are

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over 20 years old, the courts have awarded between RM2,000 and RM3,500.
In my opinion, the award of RM8,000 should not be disturbed as it is based
on a recent comparables.
Abdominal pain
The learned Sessions Court Judge awarded RM4,500. This award was
attacked by the Counsel for defendants as unjustified. In my opinion, there is
merit in this submission. The learned Sessions Court Judge relied on the case
of Azimi B Bahari v. Mohd Zaini B Ahmad & 2 Ors [2009] 1 PIR 56.
However, in the above mentioned case, the award was made for bruises over
the left abdomen and left inguinal region. The award in that case was not
made for abdominal pain. There is no medical evidence in respect of the
cause of the abdominal pain. The 2 nd plaintiff suffered serious injuries such
as open book pelvic fracture in this case for which an award for pain and
suffering has already been made and which was not disputed by the Counsel
for defendants. Therefore to make a further award for general pain on the
abdomen when there is no medical evidence that it is caused by a separate
injury would amount to duplication of the other awards made in this case.
However, Counsel for defendants had agreed to an award of RM500 for the
abdominal pain. I shall therefore reduce the award for abdominal pain from
RM4500 to RM500.
Conclusion
For the reasons given earlier, I shall dismiss the claim against liability. In
respect of quantum, I shall reduce the total award made by the learned
Sessions Court Judge as follows:

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1. The dependency award of RM96,000 in favour of the 1 st plaintiff is
therefore reduced to RM57,600.00.
2. The award for abdominal pain for the 2 nd plaintiff is reduced from
RM4,500 to RM500.
Each party to bear their own costs.
Order accordingly.
(RAVINTHRAN PARAMAGURU)
Judicial Commissioner
Date of Delivery of Judgment: 4.11.2011
Date of Hearing: 13.9.2011
14.10.2011
2.11.2011
For the Appellants: Miss Deborah Wong
Messrs David Allan, Sagah & Teng Advocates
Kuching
For the Respondents: Mr. Joseph Kahell & Mr. Sarbjit Singh
Messrs Khaira & Co. Advocates
Kuching
Notice: This copy of the Court's Reasons for Judgment is subject to editorial
revision.