501 Personal injuries -- Fracture of femur, pelvis, tibia and fibula
6 [501]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Fracture of femur, pelvis, tibia and fibula Abrasions and lacerations Brain injury and partial quadriplegiaSummary :
The plaintiff was collided into by a motor car driven by the first defendant while riding a motor cycle, fracturing his pelvis, right femur, right tibia and fibula. He was treated at the Hospital Besar Tengku Ampuan Rahimah Klang ('the hospital'), of which the second defendant was the medical superintendent, and which belonged to the third defendant, the Government of Malaysia. The doctors at the hospital suspected that the plaintiff also suffered urethra injury, and immediately inserted a catheter into the plaintiff's urethra which was removed four days later, when the plaintiff's condition improved. The plaintiff later urinated blood and had a high fever. Bacteria was found in his urine culture and a suprapubic mass containing urine was also discovered in his abdomen. He was then recatheterized more than five times. Later, the plaintiff lapsed into a coma and it was at this very late stage that he was then transferred to the University Hospital, where the urologist who did the urethrogram test on him found that the plaintiff's urethra had ruptured completely, there was a massive abscess in his pelvic cavity and his bladder was also detached from his urethra. Another neuro consultant who had examined the plaintiff also found that he was unable to vocalize, swallow with ease or walk, and all these could have been caused by septicaemia (blood poisoning) and the lack of blood supply to the brain as a result of the urinary infection. The issue before the court was whether the doctors were negligent in their treatment of the plaintiff, while he was under their care.
Holding :
Held
, awarding damages of RM523,978 for which the first defendant was 20% liable and the second and third defendants 80% liable: (1) the doctors had to exercise a fair and reasonable standard of care and skill as expected of an ordinary professional possessing such skill and art when they were treating the plaintiff, or they would be negligent in carrying out their profession; (2) the doctors had neglected to carry out the appropriate tests and treatments upon the plaintiff. First of all, contrary to general medical practice, the doctors did not carry out either the urethrogram test or cystoscopy to ascertain the exact condition of the plaintiff's urethra before treating him. Further, according to accepted medical practice, the catheter inserted in the urethra should not have been removed after four days but should have been left for two to three weeks to enable the urethra to heal on its own. The subsequent reinsertion of the catheter for more than five times also amounted to a very dangerous practice, as that could completely rupture a partially ruptured urethra; (3) the doctors had also diagnosed the swelling of the abdomen of the plaintiff incorrectly, as 'out pouching of the bladder which may be due to inborn' which was extremely remote, when all signs pointed towards urethra injuries. Despite that being suspected from the very beginning, a more conclusive probe into this direction was never carried out; (4) further, the doctors failed to perform a suprapubic cystostomy, which according to accepted medical practice, could have prevented the plaintiff's brain injury. Instead, the plaintiff was catheterized many more times, causing further and greater injuries and increasing the risk of infection; (5) the court awarded as general damages RM500 per month in nursing care for 26 years; RM12,000 for the fracture of the femur; RM12,000 for the fracture of the tibia and fibula; RM16,000 for the fracture of the pelvis; RM4,000 for abrasions and lacerations; and RM200,000 for brain injury and partial quadriplegia, with interest of 8%pa from date of service of writ to date of judgment. Special damages of RM79,978 were also awarded with interest of 4%pa from the date of accident to the date of judgment. On the total judgment sum, interest of 8%pa was awarded from the date of judgment to the date of realization.Digest :
Inderjeet Singh a/l Piara Singh v Mazlan bin Jasman & Ors [1995] 2 MLJ 646 High Court, Shah Alam (James Foong J).
502 Personal injuries -- Further and better particulars
6 [502]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Further and better particulars Particulars to be given where plaintiff claims damages for injuries received in a road accident Personal injuries Further and better particulars.Summary :
When a plaintiff claims damages for injuries received in a road accident, he must, in his statement of claim, give sufficient particulars to enable the defendant, firstly, to identify the accident in question and, secondly, to know what exactly is the case he has to answer. It is not sufficient to state merely the particulars of the defendant's negligence. The plaintiff must give particulars of his own situation at the time of the accident and state the circumstances under which the defendant collided with him. Particulars of a defendant's negligence do not make any sense unless and until it is known where the plaintiff was and what he was doing, ie whether he was in motion and, if so, the direction in which he was moving at the time of the collision. Where in his statement of claim the plaintiff merely stated that he was 'lawfully on Jalan Besar, at or near its junction with Lorong Lalat',
Holding :
Held
: (1) this statement gave insufficient particulars of the case which was intended to be made against the defendant at the trial; (2) in this case, the plaintiff should indicate to the best of his recollection his position upon Jalan Besar when he was run into and knocked down. Not only should he do that but he should also say whether at that time he was standing or was in motion and, if in motion, the direction in which he was moving.Digest :
Pang Kim Guan v Lee Cheng Liam [1968] 2 MLJ 132 Federal Court, Singapore (Tan Ah Tah FJ, Chua and Winslow JJ).
503 Personal injuries -- Genitalia and abrasions
6 [503]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Genitalia and abrasions Sterility Personal injuries Loss of sexual function Partial amputation of the penis Multiple abrasions Element of overlapping.Summary :
The plaintiff claimed damages for injuries he received in a motor vehicle accident in 1975. The defendant admitted liability. The first medical report revealed the following injuries: (i) Multiple abrasions over the (R) cheek, forehead, chest, abdomen, both thighs, parietal region, (L) elbow, both knees. (ii) Laceration over scrotum and perineum. (R) testis completely avulsed. (L) testis exposed cut, (R) spermatic cord avulsed. (L) spermatic cord vessels partially severed but cord intact. (iii) Partial amputation of the penis. In a subsequent medical report on the plaintiff in 1976, the physician said 'before this accident, he is said to have had satisfactory sexual intercourse. After the accident, he says he has occasional nocturnal ejaculation. He also has painful erection. On examination general condition good; mental state satisfactory; abdomen scar tissue seen in the epigastrium as well as the hypogastrium.... Further scar tissue also seen on the left inguinal region and the right side in the anterior aspect. Examination of genitalia: The pubic hair distribution is seen to be normal. The size of the penis is average. The right scrotum is missing, ... (there are) scars left by removal of the right scrotum and testis.... However the testis is atrophic and measures about 2 cm by 1 cm. (There is) a scar on the torso aspect of the penis and the trunk of the penis. This scar measures 2 cm by half cm and is indicated by a yellow indicator. It is slightly tender. The patient was sent for semen analysis. Unfortunately, he was unable to produce a specimen on this occasion....'. He then concluded as follows: '(a) It is very unlikely that this patient is able to father a child because the remaining testis is atrophied probably due to a result of damage to the blood supply to the testis. (b) Technically, this patient should be able to have sexual intercourse. However one has to take into account the psychological and emotional aspect of this question and I am unable to draw any firm conclusion apart from saying that there should be no technical difficulty in having sexual intercourse. (c) The penis is intact. There was a partial amputation during the accident but this has been effectively resutured. It is noted that this examination and medical report does not include a psychiatric assessment nor does it include an orthopaedic assessment.' There was further supplementary medical report in 1977. After careful examination of the medical reports,
Holding :
Held
: (1) and (g) the occasional pain in the penile scar when not performing the sexual act, backache and itchiness of the scar on the abdomen. In its final assessment the court should however bear in mind the element of overlapping; (2) in a case such as this, it is impossible to accurately assess the extent of pain and suffering and, for that matter, to express with certainty that the injuries received by a claimant in one case can precisely be compared with the injuries received in another; (3) the court should have regard to the following: (a) the multiple abrasions and lacerations in various parts of the body; (b) the partial amputation of the penis; (c) the fact that the plaintiff is now sterile and therefore unable to father a child; (d) the likelihood that the enjoyment of the plaintiff's sexual intercourse will be affected by psychological and emotional effect; (e) the pain in the penile scar during sexual intercourse; (f) the ugly scars on various parts of the body;taking into account the overall picture judged in the light of Chua Kim Liang's case, a sum of RM27,500 would provide a fair and reasonable compensation.Digest :
Abu Hassan bin Ali v Lee Peng Kong [1977] 2 MLJ 121 High Court, Kuala Lumpur (Abdul Hamid J).
504 Personal injuries -- Global award
6 [504]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Global awardSummary :
This was an appeal against an award of $65,000 for general damages on the ground that the amount allowed for loss of future earnings and in respect of pain suffering, loss of amenities and loss of expectation of life were inadequate.
Holding :
Held
(by a majority): the award could not be said to be grossly inadequate. An appeal in these circumstances must be against the award of general damages and not against specific items estimated by the judge in arriving at his award.Digest :
Mansor v Hilda Goh [1960-1963] SCR 284 Supreme Court, Sarawak, North Borneo and Brunei
505 Personal injuries -- Global award
6 [505]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Global award Quantum Global award for personal injuries Appeal against award for prospective loss of future earnings.Summary :
In this case, the appellant sustained serious injuries when she was thrown off a bus on which she was travelling as a passenger. The bus was owned by the respondents and operated by their servants. The appellant claimed damages on the ground of the respondents' servants' negligence. Before the trial, the parties agreed that liability should be apportioned 85% to the respondents and 15% to the appellant. They also agreed on the amount of special damages at S$24,861.40, which included S$24,000 for loss of earnings at S$600 per month from the date of accident till the date of trial. The sum of S$600 per month was a net sum based on a gross income of S$680 per month. The only issue at the trial was the amount of general damages. At the end of the trial the learned Chief Justice gave judgment in favour of the appellant for 85% of S$146,917.40. He itemized the damages in the following manner: Pain and suffering S$45,000; Loss of amenities S$40,000; Loss of future earnings S$37,056; Special damages (agreed) S$24,861.40; Total: S$146,917.40. The appellant appealed to the Court of Appeal against the award of S$37,056 for prospective loss of future earnings. The appeal was dismissed see [1982] 2 MLJ 137. The appellant appealed to the Privy Council.
Holding :
Held
: (1) the award for loss of future earnings in the present case which was arrived at by taking a multiplier of ten and using the tables was completely inadequate. The appropriate figure for the multiplicand should be S$600 per month or S$7,200 per annum and the appropriate multiplier to be directly applied according to the English practice should be 15 years, to allow for discounting the initial figure of 28 in respect both of future contingencies and advance payment; (2) the total for loss of future earnings should therefore be S$108,000 which should be rounded off to S$100,000.Digest :
Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] 1 MLJ 325 Privy Council Appeal from Singapore (Lord Fraser of Tullybelton, Lord Elwyn-Jones, Lord Scarman, Lord Brandon of Oakbrook and Lord Templeman).
506 Personal injuries -- Global award
6 [506]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Global award Quantum Global award for personal injuries Appeal against award for prospective loss of future earnings Appellate court's refusal to interfere.Summary :
The learned trial judge in Suit No 2580 of 1979 awarded the plaintiff/appellant damages for personal injuries in the sum of S$146,917.40 which included the sum of S$37,056 for the appellant's prospective loss of future earnings. The appellant appealed against the award of S$37,056 on the ground that it was inadequate. The respondent cross-appealed on the decision in respect of the assessment of loss of amenities in the sum of S$40,000 on the ground that it was excessive.
Holding :
Held
, dismissing the appeal and the cross-appeal: (1) what really matter in cases of damages for personal injuries is the global figure arrived at by a trial judge even if he has calculated the damages under a number of recognized heads. If the global figure arrived at is, in the particular circumstances of each case, reasonable and fair, then any appellate court would not increase or decrease a component item of damage on the basis that such item is low or excessive; (2) the court therefore would not interfere with the award and there would be no order as to the costs of the appeal.Digest :
Lai Wee Lian v Singapore Bus Service (1978) Ltd [1982] 2 MLJ 137 Court of Appeal, Singapore (Kulasekaram, Chua and Rajah JJ).
Annotation :
[Annotation:
The appeal to the Privy Council was allowed. See [1984] 1 MLJ 325.]507 Personal injuries -- Hand, crushed
6 [507]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hand, crushed Breach of statutory duty Relationship of master and servant Personal injuries Breach of statutory duty Assessment of damages.Summary :
The plaintiff claimed damages for personal injuries sustained whilst working in the defendant's rubber factory as a result of the defendant's negligence or breach of statutory duty under r 30(i) and (vi) of the safety rules made under s 4 of the Machinery Enactment (Cap 202).
Holding :
Held
: (1) the plaintiff was employed by an independent contractor and consequently there was between the plaintiff and the defendant no relationship of master and servant or employer and employee nor even a contract for services. The defendant thus owed the plaintiff no duty of care at common law and the claim for negligence fails; (2) there was a breach of statutory duty by the defendant and r 30(vi) covers the plaintiff.Digest :
Lim Thong Eng v Sungei Choh Rubber Co Ltd [1962] MLJ 15 High Court, Kuala Lumpur (Ong J).
508 Personal injuries -- Hand, crushed
6 [508]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hand, crushed Hand crushed by motor of conveyor belt Agreed general and special damages at $10,000 at 100% liability.Summary :
The plaintiff was a bark peeling contractor employed by the defendants. His work place was in the peeling section somewhere near the lower end of the conveyor belt. The waste conveyor belt was not functioning due to the accumulation of fallen waste material between the rollers and the belt causing the whole system to be jammed. On seeing the lack of success on the part of DW1 and one Roslan to get the belt moving, the plaintiff got up to the motor by walking up the conveyor belt. His intention was to use his hands to tug the 'vee' belt that connected the motor to the conveyor belt to free the stuck conveyor belt. As the plaintiff was pulling at the 'vee' belt, the motor was switched on by DW1. The 'vee' belt moved in a clockwise direction and took with it the plaintiff's hand causing it to be crushed.
Holding :
Held
: agreed quantum was RM10,000 for both general and special damages. Judgment for the plaintiff was in the sum of RM6,000 and costs.Digest :
Tan Che Sing v Bukit Senorang Lumber Industries Sdn Bhd [1983] 2 MLJ 285 High Court, Kuantan (George J).
509 Personal injuries -- Hand
6 [509]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hand Thumb amputated Contributory negligence Hand Crushed thumb - Amputation.Summary :
Held:
the plaintiff was guilty of contributory negligence and was therefore entitled to only 25% of the total damages, ie 25% of S$3,500 general damages and S$500 special damages making a total sum of S$1,000 with costs on the lower scale.Digest :
Kuok Keet Ling v National Iron & Steel Mills Ltd [1967] 2 MLJ 48 High Court, Singapore (Winslow J).
510 Personal injuries -- Hand amputation
6 [510]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hand amputation Left hand Amputation up to wrist leaving stump of thumb.Summary :
The plaintiff brought an action for damages against the owner of a factory for breach of statutory duty. The plaintiff was engaged to operate a machine called a 'press brake' for the making of window frames. It was alleged that the machine was a power press and that it was the failure to provide a guard as required under the regulations which caused the accident in this case, which resulted in the loss of the plaintiff's arm.
Holding :
Held
: (1) the machine was a power press and the failure to provide the guard was the dominant and effective cause of the accident; (2) in the circumstances of the case, it could not be said that the plaintiff had failed to take reasonable care of himself or that the carelessness or inadvertence on his part amounted to contributory negligence; (3) having regard to the trend of awards in cases where a hand had been amputated and having regard also to the age of the plaintiff, general damages of RM43,000 (which includes RM15,000 for loss of future earnings) were awarded.Digest :
Lew Fa v Seng Chong Metal Works Ltd [1966] 1 MLJ 231 High Court, Kuala Lumpur (Abdul Aziz J).
Annotation :
[Annotation:
The defendants appealed on the finding of liability ([1966] 2 MLJ 63) and the Federal Court in dismissing it observed that the award by the learned trial judge was 'an extremely generous one'. There was no appeal on the question of quantum of damages.]511 Personal injuries -- Hand injury
6 [511]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hand injury Right hand injured Permanent loss of capacity of 16% Apportionment of liability Interest on award.Summary :
The plaintiff, an Iban aged 29 at the time of accident on 13 June 1981, was employed by the defendant at the Andulau Brickworks as a labourer. He was instructed by the defendants to clean the rollers with a stick with the engine on not only the one where his hand was injured, but the other rollers which operated in the same or in other conveyor belts in the brickworks. The defendants did not dispute that the plaintiff was found with an injured hand caught in the roller but they contended that it was extremely difficult, if not impossible, for that roller to have been cleaned with a stick. The plaintiff was hospitalized for 17 days with a return for three days a week after his first release. There was a degree of loss of movement in the right wrist and a somewhat ugly scar. Such improvement as was likely in the wrist would already have taken place three and a half years after the accident. The specialist Dr Nyun was of the opinion that there had been a permanent loss of capacity of 16%. The average earnings of the plaintiff, both before and after the accident, seemed to be about RM500 a month.
Holding :
Held
: the awards are as follows: (1) RM60 for special damages; (2) RM10,000 for pain and suffering; and (3) RM14,400 for loss of earning capacity. A quarter has to be deducted from the total of RM24,460, thus giving a net award of RM18,345. There will be interest on special damages at 3% from date of accident till date of judgment, and at 6% on the award for pain and suffering and loss of amenities from date of service of writ to date of judgment. No interest is due on the award for loss of earning capacity. There will be interest at 6% on the total amount due to the plaintiff, starting 21 days from date of judgment. Costs to be taxed if not agreed.Digest :
Gelau Anak Paeng v Lim Phek San & Ors [1986] 1 MLJ 271 High Court, Kuala Belait (Roberts CJ).
512 Personal injuries -- Hands
6 [512]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hands Rheumatoid arthritis Hands Rheumatoid arthritis.Summary :
This was an appeal by the Attorney General against the decision of the High Court awarding damages to the respondent for injuries sustained by him as a result of the negligence of the prison authorities. He suffered injuries to his hands and face and rheumatoid arthritis set in on both his hands as a result of the accident. The High Court awarded him the sum of S$14,000 as general damages and S$600 as special damages.
Holding :
Held
: the awards of S$14,000 as general damages being S$9,000 in respect of loss of earnings and S$5,000 for pain and suffering and loss of amenities of life and S$600 as special damages for loss of earnings before the trial were confirmed.Digest :
Attorney General v Ho Tee Ming [1969] 1 MLJ 203 Federal Court, Singapore (Wee Chong Jin CJ, Chua and Winslow JJ).
513 Personal injuries -- Head injuries
6 [513]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Head injuries Cerebral concussion Amputation of leg Fracture of leg Pelvic fractureSummary :
This suit arose out of an accident between a motor cycle and a lorry. Both liability and damages were contested. The investigating officer gave evidence that he had found the lorry to be parked without lights or other warning signals on a side lane. The plaintiffs claimed that they had collided into the lorry as they turned into the side lane from the main road. The police report made by the first defendant, the driver of the lorry, stated that he had parked the lorry on the side lane in order to have a bath and have dinner. The first defendant did not testify in court. Both plaintiffs were below 30 years old at the time of the accident. The first plaintiff used to be a pipe repairer for a Singapore company, and was unable to resume that job after the accident. He now earned about RM600 a month. As for the second plaintiff, he worked in the same company as an excavator driver. He had not been able to find a job since the accident.
Holding :
Held
: the defendants were 100% liable. Award given was as follows: First plaintiff (1)[T]General Damages [T](a)[T]Pain and suffering [T][T]Ð[T]head injuries[T]RM[T]25,000 [T][T]Ð[T]fracture in the left leg [T][T][T](1.5cm shortening)[T]RM[T]30,000 [T](b)[T]Post-trial loss of earnings [T][T](RM1,190 Ð RM600) [T][T]΄ (11 ΄ 12)[T]RM[T]77,880 (2)[T]Special Damages (a)[T]Pre-trial loss of earnings [T][T]Ð[T]for the first 30 months: [T][T][T]RM1,190 ΄ 30[T]RM[T]35,700 [T][T]Ð[T]for the next 30 months: [T][T][T]RM1,090 ΄ 30[T]RM[T]32,700 (b)[T]Miscellaneous (agreed)[T]RM[T]450 Second plaintiff (1)[T]General Damages [T](a)[T]Pain and suffering [T][T]Ð[T]cerebral concussion[T]RM[T]2,500 [T][T]Ð[T]abrasions and lacerations[T]RM[T]2,000 [T][T]Ð[T]amputation of right leg [T][T][T](mid-thigh)[T]RM[T]65,000 [T][T]Ð[T]pelvis fracture, [T][T][T]left sacroilliac dislocation[T]RM[T]30,000 [T](b)[T]Post-trial loss of earnings [T][T](RM1,540 Ð RM540) [T][T]΄ 11 ΄ 12[T]RM[T]143,000 (2)[T]Special Damages [T](a)[T]Pre-trial loss of earnings [T][T]For the whole of 60 months: [T][T]RM1,540 ΄ 60[T]RM[T]92,400 [T](b)[T]Miscellaneous (agreed)[T]RM[T]34,710 (3)[T]Interest [T](a)[T]General damages: [T][T]pain and suffering[T]8% pa [T][T]post-trial loss of earnings[T]Nil [T](b)[T]Specific damages: [T]from accident to judgment[T]4% pa [T][T]from judgment to realization[T]8% pa.Digest :
Azam bin Kasman & Anor v Ramachandran a/l Muthusamy & Anor Civil Suit No 23-227-91 High Court, Johore Bahru (Mohd Ghazali J).
514 Personal injuries -- Head injuries
6 [514]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Head injuries Skull injury Damages Appeal against trial judge's awardsDigest :
Muniandy a/l Thangasamy & Anor v Kok Lin Lin Rayuan Sivil No 12-59-90 High Court, Ipoh (Chin Fook Yen JC).
See
DAMAGES (PERSONAL INJURY OR DEATH), para 970.515 Personal injuries -- Head injury
6 [515]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Head injury Diffused brain injury Possibility of recovery through rehabilitationDigest :
Sundharan a/l Ramasamy & Anor v Loo Soon Mook @ Loo Koon Lay & Anor Civil Suit No 25-231-1987 High Court, Taiping (Abdul Malik Ishak JC).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 538.516 Personal injuries -- Hearing
6 [516]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hearing Statement of claim Evidence Appeal against award for general damages Whether there was evidence to support magistrate's finding.Summary :
The defendant appealed against the learned magistrate's award of RM5,800 for general damages. The appellant contended that particulars of the injuries regarding partial loss of hearing were not pleaded and that there was no evidence to support the finding of the magistrate.
Holding :
Held
, dismissing the appeal: there was sufficient evidence for the magistrate to come to his conclusion.Digest :
Salih bin Mohamed v Loh Kim Foon [1982] 2 MLJ 292 High Court, Kuala Lumpur (Hashim Yeop A Sani J).
517 Personal injuries -- Hip injuries
6 [517]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hip injuries Earnings in contravention of work permit Hip injuries Quantum Dispute as to plaintiff's earnings Malaysian citizen working in Singapore on work permit Earning from additional work in contravention of permit.Summary :
On 26 July 1982, the plaintiff, then 51 years old, was on his motor cycle when he was run into by the first defendant. He suffered hip injuries. Liability was admitted and the only dispute was the quantum of the plaintiff's earnings. The plaintiff, a Malaysian citizen, claimed that he worked in Singapore and admitted that he did not pay any income tax and even performed additional work in contravention of his work permit.
Holding :
Held
: (1) it must be a matter of concern for a Malaysian court that Malaysian nationals should be discouraged from abusing the privileges of host countries when they go abroad. The proximity of Singapore to the Federation must make this observation doubly significant. Consequently, if there had been cogent evidence as to the precise amount of tax payable by the plaintiff and of the amount which he had illegally earned in contravention of his work permit, the court would have discounted the damages arithmetically due to the plaintiff on both counts; (2) the plaintiff was awarded damages for pain and suffering and loss of amenities: RM25,000; cost of total hip replacement and two-month rehabilitation period: RM10,000; pre-trial to date of judgment loss of earnings: RM14,700; future loss of earnings: RM2,100; special damages: RM1,560. Interest was awarded at 4% per annum on the special damages of RM16,260 from date of service of writ to date of judgment, and at 8% per annum on the general damages of RM37,100 from date of service of writ. As from the date of judgment up to realization, interest will run at 8% per annum on the global sum.Digest :
Yaakub Foong v Lai Mun Keong & Ors [1986] 2 MLJ 317 High Court, Johore Bahru (Shankar J).
518 Personal injuries -- Hip injuries
6 [518]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Hip injuries Genitalia Fracture of pubic and pelvic bones, [1/2]" shortening of hip, injury to vagina, loss of one genital organ General damages allowed at $30,000.Summary :
The plaintiff, a 15-year-old student, claimed against the defendants for injuries sustained by her as a result of the accident for which the defendants conceded 100% liability. The plaintiff suffered the following injuries: (1) fracture of her superior and inferior pubic bones which have since united but have left [1/2] inch shortening of her right hip. However, this shortening had in no way affected her gait. She walked normally and she had no difficulty in squatting down; (2) fracture of the left acetabulum which has united; (3) tear in the posterior vaginal wall which has left her without her hymen and with her vagina badly scarred. For the first three years after the accident, she had great difficulty in controlling her urine. This was later corrected by surgery.
Holding :
Held
: the plaintiff would be allowed general damages of RM30,000 being RM20,000 for the fractures to the pelvic bones and RM10,000 for loss of one of her genital organs, interest at 8% per annum from date of service of writ to date of trial and RM1,454.72 agreed special damages.Digest :
Sharifah Asiah v Abdul Rahman bin Long & Anor [1984] 1 MLJ 181 High Court, Kuala Lumpur (Siti Norma Yaakob J).
519 Personal injuries -- Impotence and sterility
6 [519]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Impotence and sterility Intervention of the appellate court Damges Persona injuries Assessment of damages Loss of sexual function Test for intervention of appellate court.Summary :
The respondent suffered personal injuries resulting from a road accident. He suffered a broken thigh bone which had united badly and he suffered some derangement of his sexual functions. He said that he was unable to obtain an erection, and when he attempted to perform the sexual act this caused him pain and produced psychological consequences. In the court below the learned trial judge awarded general damages: RM25,000. On appeal against quantum, the Court of Appeal dismissed it and Thomson CJ in his judgment observed: 'If the matter were capable of precise financial assessment there might be something to be said for taking it further. It is not, however, capable of precise financial assessment. We have got to take the overall picture of this unfortunate man as he is now compared with what he was in the days of his youthful health and strength before he suffered from the negligent act of the second defendant, and we have got to apply our minds at this stage not to the question of what is a suitable compensation but the question of whether the trial judge's assessment of a suitable compensation is wholly erroneous.'
Digest :
Chua Kim Liang & Anor v Teo Kim Ngo [1963] MLJ 262 Court of Appeal, Seremban (Thomson CJ, Hill and Barakbah JJA).
520 Personal injuries -- Insurance money paid to plaintiff
6 [520]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Insurance money paid to plaintiff Insurance money deducted from total damages awarded Civil Law Act 1956, s 28A(1)(a)Summary :
The plaintiff was a pilot employed by the defendants and he operated in Sabah and Sarawak. While on duty on 6 July 1982, the aircraft piloted by him developed engine trouble and he was forced to make an emergency landing near Lawas, Sarawak. The plaintiff claimed that the defendants were negligent and this caused the aircraft to develop the engine trouble and he had to make the emergency landing. The plaintiff was injured in the emergency landing. The defendants admitted 100% liability. The court was asked to assess the damages, general and special, payable to the plaintiff. The defendants had taken out and paid for insurance for (a) injury to the plaintiff RM300,000; and (b) loss of pilot's licence RM300,000. The money from the insurance had been received and paid to the plaintiff.
Holding :
Held
, awarding damages as follows: (1) special damages for expenses for medical examination and report was fixed at RM1,250; (2) for loss of earnings before trial, the court allowed full salary of RM4,000 a month for the period from August 1983 to July 1985 (24 months) which amounted to RM96,000. (Full salary had been received by the plaintiff from July 1982, the date of the accident, to July 1983.) For the period from August 1985 to February 1990, the date of trial, the court awarded RM2,000 a month for 55 months which amounted to RM110,000; (3) for post-trial loss of earnings, the court awarded RM2,000 for one year and five months which amounted to RM34,000; (4) for pain and suffering due to the head injury, loss of memory and fracture to the shoulder bone, the court awarded RM60,000; (5) the total amount of damages awarded was RM301,250. As the plaintiff had received a total of RM300,000 from the defendants, from the insurance policies which were taken out and the premiums paid for by the defendants, that sum should be deducted from the total damages awarded, leaving a sum of RM1,250 to be paid by the defendants to the plaintiff.Digest :
Ward v Malaysian Airlines System Bhd [1991] 3 MLJ 124 High Court, Kuala Lumpur (Wan Mohamed J).
521 Personal injuries -- Interest on damages
6 [521]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Interest on damages Award Contributory negligence Interest on damages.Summary :
This was an appeal from the decision of the High Court (reported at [1972] 2 MLJ 196) wherein it was held that the respondent was 75% to blame for the accident which caused the death of the deceased and that the deceased was contributorily negligent to the extent of 25%. The court also disallowed interest. The appellants, administratrix and co-administrator of the estate of the deceased, appealed to the Federal Court.
Holding :
Held
, allowing the appeal: (1) the finding of 25% contributory negligence on the part of the deceased should be set aside and the appellants should recover from the respondent the sum of RM17,280 as general damages and the sum of RM1,100 as special damages; (2) the general damages should bear interest at the rate of 6% per annum from 22 January 1971 to 10 March 1972 and the special damages should bear interest at the rate of 3% per annum from 25 February 1969 to 10 March 1972.Digest :
Harbans Kaur & Anor v Lo Kum Sang [1973] 1 MLJ 132 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Ali FJJ).
522 Personal injuries -- Interest on damages
6 [522]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Interest on damages Civil Law Act (Cap 30), s 9 Award of interest on damages Principles followed Civil Law Act (Cap 30), s 9.Summary :
The main issue before the High Court was whether interest should be awarded on a sum of S$30,000 which was the agreed sum as damages for pain and suffering and on a sum of S$16,250 which was the agreed sum for special damages. Chua J acknowledged the fact that the court's power to award interest on damages was discretionary but the learned judge refused to do so following Choor Singh J's decision in Ban Pet Hock v Ong Ah Ho. The appellant appealed against that decision.
Holding :
Held
, allowing the appeal: (1) the High Court failed to exercise its discretion judicially by failing to consider the facts and circumstances of the case and the principles which should be applied when considering whether or not interest should be awarded in personal injury cases; (2) it is now generally accepted since Jefford v Gee that the principles that should be applied in awarding interest in personal injury cases are that interest should not be awarded as compensation for the damage done but should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him, but was not; (3) the judgment of the High Court should be varied so as to allow for interest on the special damages of S$16,250 at 6% per annum from 8 December 1981 (the date when the writ was issued) to the date of trial and on the general damages of S$30,000 at 6% per annum from 27 September 1982 (the date when the defence was filed) to the date of trial.Digest :
Lee Soon Beng v Wee Tiam Sing [1986] 2 MLJ 340 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Thean JJ).
523 Personal injuries -- Interest on damages
6 [523]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Interest on damages Personal injuries sustained in road accident Whether interest should be allowed Civil Law Ordinance (Cap 24), s 8.Summary :
In this case, the plaintiff obtained damages for personal injuries suffered by him when he was knocked down by a lorry driven by the defendant. Counsel for the plaintiff applied under s 8 of the Civil Law Ordinance (Cap 24, 1955 Ed) for interest on the sum awarded from the date of the accident till the date of judgment.
Holding :
Held
: on principle, interest should not be allowed when damages are awarded in running-down cases.Digest :
Ban Pet Hock v Ong Ah Ho [1966] 2 MLJ 253 High Court, Singapore (Choor Singh J).
524 Personal injuries -- Interest on damages
6 [524]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Interest on damages Pre-trial and future loss of earningsDigest :
Teo Sing Keng & Anor v Sim Ban Kiat [1994] 1 SLR 634 Court of Appeal, Singapore (Yong Pung How CJ, LP Thean JA and Goh Joon Seng J).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 611.525 Personal injuries -- Intervention of appellate court
6 [525]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Intervention of appellate courtSummary :
The appellant, a veterinary surgeon employed by the government on contract, suffered severe injuries in a road accident. Pain and suffering were 'of the highest order'. The appellant's permanent injuries involved 30% loss of mobility and interfered with his handling of large animals such as cattle. They also affected his operational ability. He would also be to some extent a cripple and would therefore have to give up pig hunting which was his favourite occupation.
Holding :
Held
: (1) before interfering with an award by a judge of general damages, the appellate court must be satisfied that either (a) the trial judge acted on a wrong principle of law, or (b) he misapprehended the facts, or (c) he made a wholly erroneous estimate of the damage suffered; (2) the trial judge had misapprehended the effect of the evidence with regard to future employment and possible loss of earnings and also in respect of loss of amenities, making the award for general damages totally inadequate.Digest :
AK Sundram v Ali Kassim [19601963] SCR 273 Supreme Court, Sarawak, North Borneo and Brunei
526 Personal injuries -- Intervention of appellate court
6 [526]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Intervention of appellate court Damages arising from road accident Special damages Appeal on quantum of damages Principles applicable Misdirection by trial judge.Summary :
This was an appeal against the decision of the High Court in respect of an award for special damages arising from a road accident in which the respondent sustained injuries. The respondent was a goldsmith and the learned trial judge assessed his loss of income at RM1000 per month. On that basis, he awarded RM30,000 for 30 months during which the respondent was incapable of doing any work; RM4900 for seven months during which time the respondent had resumed work but only earned a reduced income of RM300 per month and RM42,270 for loss of earning capacity for a period of 25 years at RM250 per month. The appellant appealed.
Holding :
Held
: (1) indeed, it is its duty to reverse the finding of the trial judge; (2) in this case, the clear evidence was that the profit of the business was RM600 per month and there was therefore a serious misdirection in law by the learned trial judge in assessing the loss of income at RM1000 per month and this justified interference by the appeal court; (3) the principle which should guide the court in determining whether it should interfere with the quantum of damages is crystal clear. Much depends on the circumstances of each case, in particular the amount of the award. In a particular case therefore, it is for the appeal court to consider whether in the light of the circumstances of the case there is an erroneous estimate of the amount of damages in that either there was an omission on the part of the judge to consider some relevant materials or he had admitted for purposes of assessment some irrelevant consideration. If the court is satisfied or convinced that the judge has acted upon wrong principles of law then it is justified in reversing;proceeding upon the basis that there was a profit of RM600 per month and allowing a deduction of RM100 per month for the share of the father, for the 30 months for which the respondent was not able to work he ought only to have been awarded a total sum of RM15,000 (RM500 x 30); for the next seven months when the respondent was getting a reduced income of RM300 per month he should be awarded only a sum of RM1400 (RM200 ΄ 7); for loss of earning capacity, a loss of income of RM100 per month would be a fair assessment and he should be awarded RM16,900.Digest :
Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 Federal Court, Ipoh (Abdul Hamid CJ (Malaya).
527 Personal injuries -- Intervention of appellate court
6 [527]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Intervention of appellate court Personal injuries Assessment of damages Loss of sexual function Test for intervention of appellate court.Summary :
The fixation of general damages is so largely a matter of opinion or of impression that differences of calculation or assessment are to be expected. A finding of the trial judge will only be substituted on appeal if the appellate court is satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has, for those or other reasons, made a wholly erroneous estimate of the damage suffered.
Digest :
Chua Kim Liang & Anor v Teo Kim Ngo [1963] MLJ 262 Court of Appeal, Seremban (Thomson CJ, Hill and Barakbah JJA).
528 Personal injuries -- Intervention of appellate court
6 [528]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Intervention of appellate court Personal injuries Loss of earnings Pain and suffering and loss of amenities Reversing the finding of a trial judge as to amount of damages.Summary :
This was an appeal against the quantum of damages awarded by the High Court at Johore Bahru. The learned trial judge awarded RM32,012.60 altogether, being (i) RM5,675 special damages (ii) RM27,337.60 general damages. The general damages were made up of two items: (a) RM8,337.60 for future loss of earnings, and (b) RM19,000 for pain and suffering and loss of amenities. There was no complaint against the award of RM8,337.60 for future loss of earnings but it was against the award for special damages and for pain and suffering and loss of amenities that the appellant complained.
Holding :
Held
, dismissing the appeal: the Federal Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that this court should be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled. The assessments which the courts have made over the years form some guide of the kind of figure which is proper and which the Federal Court will follow in the light of the special facts of each particular case.Digest :
Topaiwah v Salleh [1968] 1 MLJ 284 Federal Court, Kuala Lumpur (Azmi CJ (Malaya).
529 Personal injuries -- Jaw fracture
6 [529]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Jaw fracture Laceration Fracture of mandible and dental injuries Deep laceration of forearm with keloid formation Plaintiff awarded $19,000.Summary :
The plaintiff in this case was 26 years old and employed as a telegram messenger at the date of collision caused by the defendant's negligence. He claimed damages for personal injuries sustained by him as a result of the said collision. The plaintiff suffered deep laceration of the left forearm 3 [1/2] inches by [3/4] inch) with keloid formation; laceration on lower chin and ventral surface of the tongue; laceration of buccal mucosa (cheek region), slight ecchymosis of lower eyelids, fracture of the left mandible (lower jaw), fracture of the maxilla (upper jaw), fracture of alveolar bone and loss of five teeth. The fractured mandible had united soundly but the plaintiff still suffered discomfort on side to side movement of the mandible.
Holding :
Held
, allowing the plaintiff's claim: general damages were awarded in the sum of RM19,000 taking into account the overlapping factor. General damages were assessed in the following manner: deep laceration of the forearm (3 [1/2] inches by [3/4] inch) with keloid formation (RM1,500); fracture of the left mandible (RM7,500); fracture of the maxilla RM$7,000); fracture of alveolar bone (RM4,500); loss of five teeth RM$5,000).Digest :
Yasin bin Wahab v Loo Kok Wai [1980] 2 MLJ 43 High Court, Kuala Lumpur (Mohamed Azmi J).
530 Personal injuries -- Jaw fracture
6 [530]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Jaw fracture Multiple abrasions Fracture of the mandible Damages awarded too low and increased on appeal.Summary :
In this case, the appellant aged five years had been hit by a car whilst crossing a road. He sustained (a) multiple abrasions on the face, dorsum of right hand and left shin; (b) fracture of the mandible left side; (c) fracture of the left tibia. The learned trial judge awarded RM2,500 general damages. The appellant appealed.
Holding :
Held
, allowing the appeal: having regard to the nature of the injuries, the disabilities, the trend of awards in comparable cases and taking into consideration various factors, the award of RM2,500 was inordinately low and should be increased to RM8,000.Digest :
Wee Siaw Hong v Lau Siew Tick & Anor [1979] 1 MLJ 232 Federal Court, Kuching (Lee Hun Hoe CJ (Borneo).
531 Personal injuries -- Jaw fracture
6 [531]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Jaw fracture Teeth, bruises Liability admitted Appeal against court's award of $15,000 Bruises over the cheek and chin, dislocation of three upper teeth and fracture of the jaws.Summary :
In this case, an appeal was brought against the court's decision in awarding the second plaintiff general damages in the sum of RM15,000 and costs against the defendants who admitted liability. The second plaintiff, aged 33, was the wife of the first plaintiff, a diplomatic officer, whose claim had already been settled. As a result of the motor accident while she was a passenger in the motor car driven by her husband, she suffered multiple bruises over the cheek and chin regions, dislocation of three upper teeth and fracture of the upper and lower jaws. The scars on the chin were still visible and as a result of the said injuries the second plaintiff had to wear a permanent denture. She had to stay away from diplomatic parties for seven or eight months as the denture had caused her some embarrassment particularly while eating during parties.
Holding :
Held
: in the circumstances, the award of RM15,000 as general damages was fair and reasonable compensation. The sum included RM10,000 for pain and suffering (RM7,000 for fractures of the jaws and RM3,000 for loss of the upper teeth), and RM5,000 for loss of amenities. The element of overlapping had been borne in mind.Digest :
Othman bin Pakir Mohamed & Anor v Yusuf bin Ahmad & Anor [1978] 2 MLJ 211 High Court, Alor Setar (Syed Agil Barakbah J).
532 Personal injuries -- Jaw fracture
6 [532]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Jaw fracture Teeth, laceration Personal injuries Jaw Fracture Contusion of bladder Loss of teeth and lacerated wound.Summary :
In this case, the plaintiff/respondent had suffered personal injuries as a result of the negligent driving of a driver employed by the first appellants, who were his employers. He was awarded by the High Court RM10,000 general damages for a fracture of the mandible, contusion of bladder with rupture of the tip of the urethra, loss of two molar teeth and lacerated wound on the left thigh. On appeal, the quantum of damages was not an issue.
Digest :
Kepong Mines Ltd & Anor v Chee Sing Kau [1969] 1 MLJ 75 Federal Court, Johore Bahru (Azmi LP, Suffian and MacIntyre FJJ).
533 Personal injuries -- Jaw fracture and abrasions
6 [533]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Jaw fracture and abrasions Digest of cases Intervention of appellate court Quantum Fracture of mandible Award of $8,000 Whether excessive.Summary :
This was an appeal by the appellant/defendant against the quantum awarded by the learned President. The plaintiff suffered: (a) swelling on neck of mandibular region; (b) swelling on periorbital region; (c) abrasion on (L) elbow; (d) two abrasions on dorsum of (L) foot; (e) small abrasion on (L) ankle; and (f) fracture of mandible bone. The learned President had awarded the plaintiff RM8,000 as general damages for the said injuries.
Holding :
Held
, dismissing the appeal: the court is of the opinion that though it may not be appropriate to refer to the Digest of Cases when making awards, and though the figure awarded is more than the trend, the award made is not against the well laid down principles and it is not that excessive as to justify an interference.Digest :
Ng Lean Teik v Ng Poh Huat [1982] 2 MLJ 352 High Court, Penang (Mustapha Hussain JC).
534 Personal injuries -- Kidney loss
6 [534]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Kidney loss Personal injuries, loss and damage suffered as a result of accident Prolonged confinement in bed Loss of kidney Remoteness of damage.Summary :
The plaintiff sued the defendants for damages for personal injuries, loss and damage he suffered as the result of an accident which occurred in March 1956 between the first defendant's bus (in which he was a passenger) driven by the second defendant and the third defendant's lorry driven by the fourth defendant. The third and fourth defendants having admitted liability for the accident, the plaintiff's claim against the first and second defendants was dismissed with costs payable by the third and fourth defendants. The only question remaining to be determined was as to quantum of damages to which the plaintiff was entitled as against the third and fourth defendants. The plaintiff sustained a broken leg and was confined to a hospital bed in the first instance for five months. The plaintiff's evidence was that after he had been in the hospital for three months, he felt a pain in his stomach. The pain continued intermittently until 25 April 1958 when he was operated on and his right kidney was removed as there was a stone in it. At the hearing, the plaintiff applied to amend the statement of claim by adding under 'Particulars of Injuries' a new paragraph: 'Loss of right kidney involving a further period of three months in hospital and considerable pain and suffering'. This addition to the claim gave rise to the issue of remoteness of damage with regard to the loss of the kidney. According to the medical evidence, the plaintiff's evidence as to pain on the right side of his abdomen some three to four months after being confined to his bed and intermittent pains thereafter until the operation was consistent with the stone formation in the kidney commencing while lying in the hospital bed from March 1956 for a period of five months.
Holding :
Held
: the plaintiff got the stone formation in his right kidney as a result of his prolonged confinement in bed at the hospital following the accident and he was therefore entitled to damages for loss of his right kidney in addition to damages for pain and suffering. General damages: S$16,000.Digest :
Aziz bin Shariff v Easy Bus Co & Ors [1958] MLJ 261 High Court, Singapore (Buttrose J).
535 Personal injuries -- Knee injury
6 [535]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Knee injury Plaintiff a Muslim Unable to join congregation in prayers Personal lossSummary :
The plaintiff, a Muslim by religion suffered knee injury and as a result he was unable to join the congregation in Friday prayers in a mosque.
Holding :
Held
: (1) the plaintiff had been deprived permanently of his right to engage in co-operate worship. This had been a loss of some value and although it could not be measured in terms of money it had to be taken into consideration; (2) a sum of S$6,609 and costs as taxed was awarded.Digest :
Mydin s/o Shaik Meeting v Kampong Bahru Bus Service Ltd [1968] 4 MC 96 High Court, Singapore (Choor Singh J).
536 Personal injuries -- Laceration
6 [536]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Laceration Personal injuries Leg 3" shortening.Summary :
This was a claim for damages in respect of personal injuries sustained by both plaintiffs in a road accident. It appeared that the defendant was driving along a road and intended to turn to the right. He stopped, leaving sufficient room for vehicles to pass on his left, and when the oncoming traffic was clear he turned right into a lane. The plaintiff's motor cycle coming in the opposite direction saw the car swerving into his path and he swerved to the right to avoid the accident but knocked into the rear near side of the car. As a result, the first plaintiff and his pillion rider the second plaintiff were injured. The second plaintiff suffered a fracture of the shaft of the right femur and 3 inches shortening. General damages were agreed at RM27,000. The first plaintiff suffered laceration of the scalp and bleeding from the right ear. Section 18 of the Highway Code provides that when turning left or right drivers must always give way to through traffic.
Holding :
Held
: (1) on the facts, the defendant had failed to keep a proper lookout before he swerved to the right and therefore he was negligent; (2) what was done or omitted to be done by the plaintiff in the agony of the moment cannot be fairly treated as negligence and therefore there was no contributory negligence on the part of the plaintiff; (3) in the circumstances, general damages for the first plaintiff would be assessed at RM1,000.Digest :
Govinda Raju & Anor v Laws [1966] 1 MLJ 188 High Court, Kuala Lumpur (Raja Azlan Shah J).
537 Personal injuries -- Laceration
6 [537]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Laceration Personal injuries Negligence of passenger Whether driver liable.Summary :
The defendant was sued by the plaintiff for damages for personal injuries caused when a passenger in the defendant's taxi opened a door to alight. The plaintiff suffered laceration of the right forearm which was five inches long. The judge decided that the defendant was not liable but in case the plaintiff appealed, he assessed the general damages at S$800.
Digest :
Tan Hung Chiang v Ang Kong Hwee [1965] 1 MLJ 59 High Court, Singapore (Ambrose J).
538 Personal injuries -- Lacerations and scars
6 [538]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Lacerations and scars Psychiatric problems Personal injuries Laceration Skin grafting Scars Keloid formation Functional disabilities Psychiatric problem Personality impairment Plastic surgery General damages Assessment Factors.Summary :
The plaintiff, a secondary school student, sued for damages for personal injuries suffered in a motor accident. The injuries she suffered were: (a) 10 inch long ragged laceration over the antereo-lateral aspect of the right forearm extending from the antecubital fossa downwards. The flexor muscles and the radial component of the extensor muscles were exposed and lacerated; (b) three ragged lacerations measuring about 1 inch diameter each over the medial aspect of the right thigh. These lacerations were deep and exposed the underlying muscles; and (c) a small superficial laceration on the inner aspect of the left labia minora of her external genitalia. Emergency surgery of excision of wound of the right forearm, debridement and closure of the anterior defect by primary split skin graft was performed on 19 October 1971. Toilet and suture was done for the right thigh. On 1 December 1971, excision of slough over the lateral aspect of the right forearm and skin grafting were performed. She was hospitalized for 54 days. During her convalescence, she developed psychiatric problems on 29 October 1971 and she was treated by the senior consultant psychiatrist at the General Hospital. On 10 August 1974, she developed another episode of psychiatric disturbances and was admitted to the General Hospital, Kuantan and Kuala Lumpur. On 22 September 1974, she was discharged from General Hospital, Kuala Lumpur.
Holding :
Held
: (1) in assessing damages, it was important that the court directs its mind to the following factors: (a) pain and suffering and loss of amenities (b) psychiatric problems (c) plastic surgery; (2) all the court could do was to award her a sum which would compensate her for the pain and suffering she had undergone and would in all probability continue to undergo. The sum awarded 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; (3) in considering what compensation the court should award, it was impossible to arrive at an accurate figure;taking into consideration the pain and suffering and loss of amenities, the impairment of personality and the cost of plastic surgery, the court would assess general damages at RM38,000 and special damages at RM2,000.Digest :
Mariam bte Mansor v JD Peter [1975] 1 MLJ 279 High Court, Kuala Lumpur (Abdul Hamid J).
539 Personal injuries -- Lacerations of scalp and bleeding from ear
6 [539]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Lacerations of scalp and bleeding from ear Leg shortening Personal injury Leg 3" shortening.Summary :
This was a claim for damages in respect of personal injuries sustained by both plaintiffs in a road accident. The first plaintiff suffered from laceration of the scalp two inches long and bleeding from the right ear. The judge awarded general damages: RM1,000; special damages: RM70.
Digest :
Govinda Raju & Anor v Laws [1966] 1 MLJ 188 High Court, Kuala Lumpur (Raja Azlan Shah J).
540 Personal injuries -- Leg
6 [540]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg Loss of future earnings Cost of replacement limbsSummary :
The plaintiff was injured in a motor accident in 1985. His right leg was crushed when it was run over by a lorry driven by the defendant. As a result of the injury the leg was amputated and an artificial limb attached. At the time of the accident the plaintiff was 22 years old and a regular serviceman with the armed forces trained as a sniper. He was holding the rank of corporal. Because of his injury the plaintiff's contract with the armed forces was not renewed when it expired. The plaintiff found alternative employment at a reduced salary and brought an action against the defendant claiming damages.
Holding :
Held
, allowing the plaintiff's claim: (1) the court took into consideration the excruciating pain the plaintiff had to have suffered at the time of the accident and awarded S$50,000 for pain and suffering; (2) had the plaintiff continued with the armed forces, as was his intention before the accident, he would have been promoted to the rank of sergeant by the end of 1986 and earned S$2,000 per month. After deducting the plaintiff's earnings from his new employment, the pre-trial loss would therefore be fixed at S$48,427; (3) gratuity was in the true sense of the word part of the plaintiff's remuneration and had to be included in the calculation of the pre-trial loss; (4) as regards the future loss, given the plaintiff's age, the multiplier would be fixed at 15 years. It was reasonable to assume that the plaintiff would have progressed beyond the rank of sergeant during the 15-year period through promotion. The figure of S$2,000 per month was therefore a reasonable figure for the multiplicand. From this a deduction had to be made of what the plaintiff would earn from his present employment. the plaintiff's vocational mobility was rather limited. The odds were even that he would earn more than the S$1,300 he was presently earning. The plaintiff's future loss would be assessed at S$156,000. As this figure was conservative in nature, there would be no discount for lump sum payment; (5) the claim for cost of future replacements of the artificial leg would be based on the 15 year multiplier and fixed at S$21,000; (6) the plaintiff would also be paid the sum of S$10,920 being the cost of the artificial limbs he was presently using, which had been supplied by his present employers, notwithstanding that the plaintiff's employers had not claimed this amount from him yet. It would be contrary to public policy that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relatives or of the public at large, and that the only gainer would be the wrongdoer.Digest :
Pang Teck Kong v Chew Eng Hwa Suit No 2829 of 1987 High Court, Singapore (Warren Khoo J).
541 Personal injuries -- Leg amputation
6 [541]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputationSummary :
In this case, the first defendant had successfully tendered to do certain works for the third defendants. The works included the removal and replacement of a bullwheel on one of the dredges of the third defendants. The first defendant engaged the second defendant as foreman and a number of workmen including the plaintiff. The plaintiff was injured in an accident which occurred when the sling which bore the full weight of the bull-wheel snapped and the wheel fell causing injury to the plaintiff as a result of which his left leg had to be amputated.
Holding :
Held
: the damages awarded would be: RM18,000 for loss of earnings up to date of judgment; RM24,000 for loss of future earnings; RM38,000 for compensation for pain and suffering and loss of amenities.Digest :
Sim Kim Sam v Fong Ah Yin & Ors [1982] 2 MLJ 56 High Court, Kuala Lumpur (George J).
542 Personal injuries -- Leg amputation
6 [542]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Artificial leg Overlapping under two separate heads Leg Amputation of right thigh Assessment of damages.Summary :
In this appeal, the plaintiff obtained judgment in the High Court in the sum of S$142,072 for personal injuries suffered by him in the course of his employment as a member of the crew of the ship MV 'Kohekohe' ('the ship') against the defendants, the owners of and other persons interested in the ship. As a result of this, an accident occurred which resulted in the plaintiff having a traumatic amputation of the right thigh at the level of the one-third inferior and one-third medium. For pain and suffering and loss of amenities, the plaintiff was awarded S$42,000 as general damages. The defendants appealed against the judgment both on liability and quantum of damages contending: (1) although the defendants were negligent in failing to provide a safe system of work, the learned judge ought to have found contributory negligence on the part of the plaintiff; (2) the figure of S$42,000 awarded as general damages was taken from cases where general damages were awarded inclusive of loss of future earnings.
Holding :
Held
: (1) the facts showed that there was no contributory negligence on the part of the plaintiff. The defendants were wholly to blame for the accident as they had failed to provide a safe system of work; (2) the figure of S$42,000 was not taken from cases where general damages were awarded inclusive of loss of future earnings. The learned judge specifically said that the general damages of S$42,000 was for 'the amputation of the right leg'; (3) when damages for negligence are assessed under separate heads, and as the matters considered under the head of general damages for pain and suffering and loss of amenities are wholly different from those considered under the head of loss of future earnings, there ought not to be an overlapping in these two awards.Digest :
The 'Kohekohe'; MV 'Kohekohe', Owners & Ors v Supardi bin Sipan [1985] 2 MLJ 422 Court of Appeal, Singapore (Sinnathuray, Lai Kew Chai and Thean JJ).
543 Personal injuries -- Leg amputation
6 [543]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Earlier cases Leg amputation Criteria for assessment Change in social and economic conditions.Summary :
In June 1978, the plaintiff while riding his motor cycle on a narrow two-way road met with an accident when a lorry driven by the defendant in breach of his duty of care to the users of the said road came into the said road to make a U-turn, collided into the motor cycle and injured the plaintiff. As a result of his injury, the plaintiff underwent an above knee amputation of his right leg. At the time of the accident, the plaintiff was 17 years of age and was employed as a bakery assistant at S$300 per month. He had been in such employment since December 1977.
Holding :
Held
: (1) on the evidence adduced, the defendant was wholly liable for the accident; (2) in deciding this case, earlier cases were not altogether helpful because they were decided more than 10 to 15 years earlier when social and economic conditions in the country were quite different from what they are today; (3) taking the factors mentioned above into account, the plaintiff should be awarded S$40,000 as general damages and S$56,124 for loss of future earnings.Digest :
Lee Yew Hoe v Lee Bock Huat [1980] 2 MLJ 271 High Court, Singapore (Sinnathuray J).
544 Personal injuries -- Leg amputation
6 [544]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Genitalia Leg amputation Injury to female genitals Fractured femur and acetabulum Plaintiff a housewife and mother of five $90,000 as general damages.Summary :
The plaintiff was a 32-year-old married woman with five children. She suffered the following injuries as a result of a road accident: (a) fracture mid-shaft right femur; (b) fracture acetabulum of pelvis on both sides; (c) about 10 cm lacerated wound over her genitals. Anterior wall of vagina was torn and extending to urethral opening; (d) multiple contusions and abrasions around external genitalia; (e) 15 cm laceration over inguinal region on right side. This was a deep laceration exposing the muscles and the pubic bone; (f) 10 cm ΄ 12 cm laceration over right knee with skin loss. The patella was exposed; (g) 4 cm laceration over dorsum of right foot; (h) punctured wound over right forearm. Her right leg was amputated above the knee. Sexual intercourse was possible but painful and if conception were to occur, a caesarean was required. Liability was admitted.
Holding :
Held
: (1) taking the all important factor that the global sum assessed for several injuries should be scaled down by reason of overlapping, the sum of RM85,000 is a fair award for general damages for all the plaintiff's injuries on all counts. RM5,000 should be added for proportionate loss of earning capacity. Interest was assessed at 8% per annum from the date of service of the writ up to date of judgment; (2) (ii) Five artificial limbs @ RM2,000 each RM10,000; (3) Maintenance thereof for 30 years at RM100 per annum RM3,000; (4) Revision surgery and incidentals RM4,000; (5) special damages awarded were as follows: (i) Agreed specials RM2,153;Past earnings RM1,560; Total RM20,713. There would be interest at 4% per annum from the date of the service of writ on the agreed specials and past earnings or RM3,713 up to the date of this judgment. The other specials awarded had not yet been incurred. Consequently they would be lumped into the decretal amount of RM110,713 on which interest would run at 8% per annum from the date hereof up to realization.Digest :
Thrimalai & Anor v Mohamed Masry bin Tukimin [1987] 1 MLJ 153 High Court, Johore Bahru (Shankar J).
545 Personal injuries -- Leg amputation
6 [545]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Intervention of the appellate court Trend of awards Personal injuriy Leg Amputation above knee Considerations in making award Appeal Considerations to be borne in mind Guidance for awards in other cases.Summary :
This was an appeal in which it was sought to increase the amount of damages awarded to the appellant. The appellant at the date of the accident was a schoolboy aged seven. The motor bus which knocked him down ran over his right leg causing such severe crushing injuries as to necessitate the amputation of the leg. He was taken to hospital after the accident and was not unconscious at the time of his admission. The amputation was of the entire leg at a point just below the hip joint and the appellant had to use an artificial leg. The trial judge held that there had been contributory negligence on the part of the appellant to the extent that damages to which he would be otherwise entitled should be halved and he awarded RM7,500 as general damages. The Court of Appeal affirmed the decision of the trial judge ([1962] MLJ 271).
Holding :
Held
: (1) and (c) to the extent to which regard should be had to the range of awards in other cases which are comparable, such cases should as a rule be those which have been determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial considerations existed, but caution must be exercised when considering the awards in such cases. If the facts of those cases bore reasonable comparison with those under review, some measure of uniformity might be achieved by heeding any current trend of considered judicial opinion, but that did not mean that the damages should be standardized or rigidly classified; (2) in deciding the appeal, three considerations should be had in mind: (a) the law as to the factors which must be weighed and taken into account in assessing damages is in general the same as in England; (b) the principles governing the approach of an appellate court that is invited to hold that damages should be increased or reduced are the same as those of the law of England;as it had been shown that the award in the present case RM15,000, reduced by half to RM7,500 on a finding of contributory negligence was so much out of line with a discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as a wholly erroneous estimate, the general damages should be increased to one half of RM25,000.Digest :
Jag Singh v Toong Fong Omnibus Co Ltd [1964] MLJ 463 Privy Court Appeal from the Federation of Malaya (Lord Morris of Borth-y-Gest, Lord Hodson and Lord Guest).
546 Personal injuries -- Leg amputation
6 [546]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Knee Amputation above Future earnings Quantum not agreed Duty of court.Summary :
The respondent was on his way home on his motor cycle when he was knocked down by a motor car driven by the second appellant and owned by the first appellant. He sued the appellants for damages. The learned judicial commissioner who heard the case found the collision was caused by the negligence of the motor car driver and awarded the respondent RM70,000 general damages for pain and suffering and loss of amenities. He allowed the sum of RM1,170 for special damages and also awarded a sum of RM18,000 for the cost of the hip and knee joint operation and RM500 for the purchase of special shoes. He also held that the respondent was entitled to damages for loss of future earnings but he left it to the solicitors of both parties to work out the award. The appellants appealed.
Holding :
Held
: (1) it is the function of the court to assess damages and where the quantum is not agreed on by the parties on any item as in the present case, it is both unreasonable and undesirable to order them to assess the damages themselves; (2) having regard to the trend of awards on leg amputation above the knee, the award of RM70,000 for pain and suffering and loss of amenities in this case was a wholly erroneous estimate of the damage suffered. The award is manifestly excessive and the award should be reduced to RM40,000 which is a fair and equitable compensation under this item; (3) loss of future earnings had not been proved in this case but the respondent should be compensated for injury to his earning capacity. Taking into account all past and future contingencies, an award of RM12,000 for loss of earning capacity would be fair and adequate in this case; (4) the award of special damages should be reduced to RM300 as there was evidence to support only this amount, the claim for special shoes should be set aside for lack of evidence that such shoes were required by the respondent but the award of RM18,000 for cost of surgical operation should remain.Digest :
Tay Tong Chew & Anor v Abdul Rahman bin Haji Ahmad [1985] 1 MLJ 50 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).
547 Personal injuries -- Leg amputation
6 [547]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Leg Amputation of right leg.Summary :
This was an appeal against the judgment of the High Court whereby the appellant was held entirely to blame for a road accident resulting in injuries to the respondent for which he was awarded a sum of RM32,000 by way of general damages. The object of the appeal was to seek apportionment of blame between the parties.
Holding :
Held
, dismissing the appeal (Ong CJ (Malaya) dissenting): the judgment appealed from was based entirely on findings of fact and it was not open to the court to set aside such findings of fact. Per Ong CJ (dissenting): 'I do not think it is correct to assume, as a matter of course, that because the trial judge had seen and heard the witnesses, he must necessarily be right. In my opinion, even where he has been impressed by the demeanour of certain witnesses, the appellate court has still an obligation to scrutinize their evidence.'Digest :
Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175 Federal Court, Kuala Lumpur (Ong CJ (Malaya).
548 Personal injuries -- Leg amputation
6 [548]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Leg amputation General damages $37,500 awarded.Summary :
In this case one Arasappa, the second respondent, was injured in a road accident between a motor cycle ridden by him and a motor car driven by the appellant. He sustained minor fractures and was taken to hospital where he was attended by a medical doctor, the third respondent. A complete plaster cast was applied to the leg but owing to lack of proper skill in the application and observation in monitoring of the treatment, there was inadequate blood circulation which led to gangrene, necessitating the amputation of the leg. The second respondent claimed damages against the appellant, the third respondent and the government in respect of the initial injuries caused to him by the road accident and the final incapacity resulting from the hospital treatments given to him. The appellant admitted liability as regards the road accident but denied it as regards the amputation of the second respondent's leg. The learned trial judge absolved the medical officer (third respondent) and the government (fourth respondent) from any blame and held the appellant solely to blame. The appellant appealed.
Holding :
Held
: the proper apportionment of damages should be as follows: (1) the RM37,500 general damages should be borne by the appellant and the third and fourth respondents in the proportion of 20% and 80% respectively; (2) the RM12,320 special damages should be apportioned in the same proportions as the general damages; and (3) the RM33,100 loss of future earnings should be wholly borne by the third and fourth respondents.Digest :
Kow Nan Seng v Nagamah & Ors [1982] 1 MLJ 128 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).
549 Personal injuries -- Leg amputation
6 [549]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Leg injury resulting in amputation Award of $97,000 with costs on basis of 50% contributory negligence Appeal Reduction of award to $7,600 based on additional evidence adduced.Summary :
The appeal in this case arose from a claim by the plaintiff for damages for personal injury suffered by him, caused by the negligence of the defendants or their servants in the management and control of an engine by means of which a wire hawser was used to pull logs off a lorry and then up a slope for stacking in the defendants' sawmill. The plaintiff's leg had to be amputated when gangrene set in. The learned trial judge held that the said amputation was a direct consequence of the injuries received by the plaintiff in the accident. He therefore awarded the plaintiff S$97,000 with costs on the basis of 50% contributory negligence on the plaintiff's part. The defendants appealed.
Holding :
Held
, allowing the appeal: (1) in view of the additional evidence adduced, it was no longer possible to say that the amputation of the plaintiff's leg flowed directly from the injuries that the plaintiff received in the accident; (2) if the learned trial judge had had the said evidence before him, the assessment of damages would have proceeded not on the basis of a below-knee approximately mid-calf amputation of the right leg but on the basis of a healed bone broken up in many pieces and a fracture of the right malleolus; (3) the damages awarded to the plaintiff would therefore be reduced from S$97,000 to S$7,600.Digest :
Hong Huat Timber Trading Co v Liew Kwee Chin [1980] 1 MLJ 1 Court of Appeal, Singapore (Chua, Choor Singh and Rajah JJ).
550 Personal injuries -- Leg amputation
6 [550]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Loss of consortium Quantum Loss of consortium Claim by husband of injured wife Award of $3,000 granted.Summary :
The plaintiff's wife was run down by a bus resulting in injuries to her left leg which had to be amputated. She remained in hospital for six weeks. She had sued the bus company and recovered damages. The husband then brought an action against the bus company for loss of consortium. He said that as a result of the accident, his wife had resiled from his physical and moral companionship. She was by her physical and mental state no longer in a position to give him the comfort and care she once gave as a wife. The psychiatrist's report had certified that she was suffering from a schizophrenia complex with a secondary depression following the amputation. It was also stated that she was now a changed person. She was sensitive and irritable. She hated the husband and denied him completely all sexual relationship. The present appeal was against the award by the sessions court of RM3,000 for general damages for the loss of her consortium.
Holding :
Held
, dismissing the appeal: the learned President had considered the matter carefully and fairly and given a proper award of RM3,000. There was no reason for disturbing his finding. In making the award, he had not only considered the loss to the plaintiff of her consortium but the loss to him of her companionship in his social commitment to society which the state of her mental health had occasioned.Digest :
Bas Mini Muhibbah Sdn Bhd v Abdullah bin Salim [1983] 2 MLJ 405 High Court, Kuala Lumpur (Abdul Razak J).
551 Personal injuries -- Leg amputation
6 [551]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Promotional prospects Leg Amputation of Loss of future earnings.Summary :
The plaintiff was a geologist working with a mining company. The defendants were contractors carrying out tunnelling operations in Kedah. The plaintiff was one of a party of the Geological Society of Malaysia visiting a tunnel which was being constructed by the defendants. The visit was for the purpose of geological survey and examination of rocks. They were led into the tunnel by the defendants' servants. While they were inspecting some rocks, certain machinery under the control and management of the defendants began to operate without any warning. The plaintiff and his party in their fright and excitement attempted to evacuate to a place of safety. In doing so, the plaintiff's leg was crushed by machinery in the tunnel and later had to be amputated. The plaintiff brought an action for damages against the defendants for the injuries sustained by him due to the alleged negligence of the defendants, their agents or servants. After the accident, the plaintiff's employer did not terminate his employment but allowed him to carry on his former duties as geologist with the same salary as before. It was agreed by both parties that should the court find the defendants to be solely negligent a sum of RM32,500 should be awarded to the plaintiff as general damages for pain and suffering and loss of amenities.
Holding :
Held
: although the plaintiff had been allowed to continue in his former job, his promotional prospects would be affected and, if he was retrenched, he would find it difficult to get a job with another company. In the circumstances the sum of RM40,470 would be fair and reasonable for loss of future earnings.Digest :
Yeap Cheng Hock v Kajima-Taisei Joint Venture [1973] 1 MLJ 230 High Court, Alor Setar (Syed Agil Barakbah J).
552 Personal injuries -- Leg amputation
6 [552]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Quantum Expatriate injured Amputation above knee and severe comminuted fracture of tibia and fibula Brunei ÊPrinciples applicable Inflation.Summary :
The plaintiff in this case was an expatriate aged 34 who worked as assistant driller at a monthly salary of US$2,250 in Brunei. He was employed on a two-year contract from 10 February 1976. On 13 July 1978 he was injured when his motor cycle collided with a motor car driven by the defendant. It was agreed between the parties that the defendant was 90% to blame for the accident. The plaintiff's injuries consisted of multiple abrasions to the chest and abdomen and severe comminuted fracture of the right tibia and fibula. There were several deep lacerations on the upper and lower leg with a large penetrating injury of his foot complicated by fracture of the metatarsals. An above-knee amputation was carried out on 22 July 1978, as a result of which he could not play active sports.
Holding :
Held
: (1) the Brunei awards should, in general, follow those of Singapore and Malaysia, provided that the awards in Singapore and Malaysia are based upon the same principles of law which are applicable to Brunei; (2) the plaintiff should be awarded special damages of RM74,452 and general damages of RM421,344 (being RM50,000 for pain and suffering and loss of amenities, RM331,200 for loss of pension and RM18,144 for cost of future renewal of prosthesis). A deduction of 10% of the total award was allowed for the admitted negligence of the plaintiff.Digest :
RJ McGuinness v Ahmad Zaini [1980] 2 MLJ 304 High Court, Kuala Belait (Roberts CJ).
553 Personal injuries -- Leg amputation
6 [553]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Shoulder paralysis Cost of artificial limb Multiple injuries Leg amputation Paralysis of shoulder Cost of artificial limb Pain and suffering Future earnings Special damages.Summary :
On 7 October 1979, the plaintiff, Lee Boon Kiat, was riding motor cycle No NH 1442 along the Linggi-Rantau Road, Negeri Sembilan, from the direction of Linggi towards Rantau when at or near 14[1/4] ms of the road, he was run into and knocked down by motor car No MC 6166 driven by the defendant, Ng Sing, along the road travelling in the opposite direction. The defendant admitted liability. As a result of this accident, the plaintiff suffered the following injuries: (a) Fracture of lower one-third of left femur. (b) Laparotomy and surgical control of bleeding from the stomach wall. (c) Compound comminuted fractures of the right tibia and fibula with a large wound over the leg involving muscles and other deep structures resulting in the amputation of the right leg through the knee. (d) Right brachial plexus injury with total paralysis of shoulder and elbow movements (with slight improvements subsequently) and partial paralysis of the fingers, and fracture of the right ulna.
Holding :
Held
: (1) the plaintiff should be given judgment with costs on the following awards: (i) Loss of actual past earnings RM5,355 (ii) Loss of partial past earnings RM1,963.50 (iii) Cost of artificial limbs and maintenance RM11,200 (iv) Pain and suffering and loss of amenities RM71,000 (v) Loss of future earnings RM40,000 (vi) Agreed special damages RM8,716.00 Total RM138,234.50. (2) the awards on items (i) and (ii) and (vi) were with interest at 4% per annum from date of accident to judgment. Interest should also run on item (iv) from date of service of writ to judgment at 6% per annum. No interest was allowed on items (iii) and (v); (3) as the injuries relate to different parts and functions of the body, there was no overlapping and therefore no deductions should be made.Digest :
Lee Boon Kiat v Ng Sing [1982] 1 MLJ 229 High Court, Seremban (Wong Kim Fatt JC).
554 Personal injuries -- Leg amputation
6 [554]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Transfer to private hospital Mitigation of damages Loss of earnings, total or partial Light job Method of assessmentSummary :
The litigants were involved in a road accident. As the two sides' evidence conflicted, and objective evidence was unavailable, the defendants asked for equal apportionment of liability. The plaintiff was injured and warded in a government hospital. He was later transferred to a private hospital. The defendants contended that the plaintiff should have mitigated his damages by remaining at the lower cost government hospital. The plaintiff claimed total loss of earnings for five years from the accident, although he had a light job 1[1/2] years after he sustained the injury.
Holding :
Held
, allow the plaintiff's claim in part: (1) since the evidence of the parties conflicted and objective evidence was unavailable, each party was equally liable for the accident; (2) the expense for the private hospital would be disallowed because the government hospital was able to provide adequate facilities, expertise and treatment (the court should not rely solely on medical advice on this issue); (3) the plaintiff would be allowed pre-trial total loss of earnings for 1[1/2] years from the accident, and then partial pre-trial loss for the subsequent 3[1/2] years (until judgment) because he had a light job. Thereafter, he would have damages for post-trial loss, without interest.Digest :
Peraganathan a/l Karpaya v Choong Yuk Sang & Anor Suit No 25-56-87 High Court, Ipoh (Chin Fook Yen J).
555 Personal injuries -- Leg amputation
6 [555]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Trend of awards Leg Amputation above knee Trend of awards.Summary :
This was an appeal against the decision of the High Court noted at [1965] 1 MLJ xii. The appellant, a schoolboy aged 13, lost his leg by amputation above the knee as a result of severe injuries received when he was knocked down by the respondent's motor bus. The parties were equally to blame and the learned judge awarded RM11,698.30 comprising of RM4,198.30 special damages and RM7,500 as general damages. On appeal,
Holding :
Held
: the general damages should be increased to one half of RM35,000 and as the amount of special damages was not disputed, the award should be one half of RM4,198.30. Total amount of damages RM19,599.15.Digest :
Chin Boon Keng v Sri Jaya Transport Co (PTM) Ltd & Anor [1965] 2 MLJ 239 Federal Court, Kuala Lumpur (Barakbah CJ (Malaya).
556 Personal injuries -- Leg amputation
6 [556]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Types of damages Leg amputation Loss of earnings and earning capacity Future loss.Summary :
In this case, the appellant, a contractor, was injured in a road accident as a result of which his right leg below the knee was amputated. The learned trial judge held that the appellant was partly to blame for the accident to the extent of 25%. On 100% liability, he awarded as special damages RM2,995 for out-of-pocket expenses and RM25,000 for actual loss of earnings; for general damages he awarded RM35,000 for pain and suffering and loss of amenities and RM12,000 for loss of earning capacity. These amounts were reduced by 25%. No award was made for future loss of earnings on the ground that there was insufficient evidence to make such an award. The appellant appealed against the refusal of the learned judge to make an award for loss of future earnings and also argued that the award of RM12,000 for loss of earning capacity was too low compared to the provisions of the Workmen's Compensation Ordinance for similar injury.
Holding :
Held
: (1) the learned trial judge was correct in not making an award for loss of future earnings as there was no evidence of such possible loss of earnings by the appellant as a result of the loss of his right leg; (2) the award of RM12,000 for loss of earning capacity was fair and reasonable having regard to the nature of the appellant's work and the failure of the appellant to prove future loss of earnings.Digest :
Sam Wun Hoong v Kader Ibramshah [1981] 1 MLJ 295 Federal Court, Kuala Lumpur (Suffian LP, Abdul Hamid FJ and Mohamed Azmi J).
557 Personal injuries -- Leg amputation
6 [557]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg amputation Urethra rupture Impotence Personal injuries Multiple fractures ÊLeg amputated through the knee Rupture of urethra Impotence Assessment of damages.Summary :
The plaintiff, a 35-year-old lorry driver whose average daily earning was RM8, whilst riding a bicycle early one morning, was run into from behind by a lorry driven by the first defendant and which was travelling in the same direction as the plaintiff. It was alleged that this lorry had just been in a collision with a lorry driven by the second defendant, also travelling in the same direction. The plaintiff claimed damages for personal injuries sustained by him as a result of the accident, from one or the other or both of the defendants, as he alleged that he was run into and knocked down as a result of the negligence on the part of the first or second defendant or both of them. The first defendant admitted that it was his lorry which knocked down the plaintiff, but denied that it was caused by his negligence. He maintained that the accident was caused by the negligence of the second defendant. The second defendant denied negligence on his part.
Holding :
Held
: (1) the first defendant was in no way negligent and the injuries to the plaintiff were caused as a direct and immediate result of the second defendant's negligence; (2) in all the circumstances of this case and taking into consideration the injuries sustained by the plaintiff which caused his detention in hospital for approximately six months, the sum of RM3,420 was awarded as special damages and RM37,000 as general damages.Digest :
Liow Sang v Chai Choo Kim & Anor [1962] MLJ 429 High Court, Kuala Lumpur (Gill J).
558 Personal injuries -- Leg and arm fractures
6 [558]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg and arm fractures Intervention of the appellate court Promotion prospects Leg Arm Fracture.Summary :
In this case, the respondent, a lance-corporal in the army, was injured in a road accident. As a result of the accident, he sustained the following injuries (a) compound comminuted fracture of the upper [1/3] left tibia and fibula; (b) fracture of the lower [1/3] radius and segmental fracture of left ulna. The learned trial judge considered that the respondent had a good chance of promotion eventually to Warrant Officer II and he computed the losses up to 30 September 1990 at RM58,137.66. He also computed the reduction of future earnings at RM25,588. The appellant appealed.
Holding :
Held
: (1) the principle which should guide the court sitting in appellate jurisdiction in determining whether it will interfere with the quantum of damages is well established. The appellate court is always slow to reverse the trial judge's decision on assessment of damages unless there are strong grounds for interference; (2) in this case, the trial judge was not realistic in considering the promotion prospects of the respondent in that in real life an officer does not get promoted every three years in clockwork precision. Considering the whole of the evidence, the respondent would have been promoted at the most to full sergeant by the end of his military career; (3) the pre-trial and post-trial losses of earnings would therefore be assessed at RM27,022 and the reduction in future earnings at RM12,800.Digest :
Nordin bin Haji Abdul Wahab v Mohamed Salleh bin Hassan [1986] 2 MLJ 294 Supreme Court, Kuala Lumpur (Wan Suleiman, Hashim Yeop A Sani and Wan Hamzah SCJJ).
559 Personal injuries -- Leg fracture
6 [559]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Flesh wound Motor car accident Negligent driving of servant or agent Personal injuries Proof of ownership of motor car Prima facie evidence of employment of driver Doctrine of res ipsa loquitur.Summary :
Where a plaintiff in an action for negligence proves that damage has been caused by the defendant's motor car, the fact of the ownership of the motor car is prima facie evidence that the motor car, at the material time, was being driven by the owner, or by his servant or agent. There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
Digest :
See Keng Wah v Lim Tew Hong [1957] MLJ 137 High Court, Singapore (Chua J).
560 Personal injuries -- Leg fracture
6 [560]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Fracture of humerus and femur Possibility of improvement through rehabilitationSummary :
The plaintiff, riding a motorcycle, collided with a van driven by the defendant in the opposite direction, thereby sustaining diffused brain injury as well as fractures to his right humerus and femur. The court, considering the fact that there was a possibility that the plaintiff could function better with a rehabilitation programme, and in view of the fractures of the right humerus and right femur, awarded RM78,000 for pain and suffering and loss of amenities. An award of RM4,000 was given for fracture of the right humerus and RM4,000 for fracture of the right femur. For the diffused brain injury sustained, the court felt that an award of damages in the sum of RM70,000 was reasonable, bearing in mind that firstly, there was no report or evidence by a neurosurgeon, secondly, the prospects of recovery through rehabilitation could not be ruled out and thirdly, that there was no evidence of permanent brain injury. With regard to special damages, the court awarded RM24,840 for pre-trial nursing care and RM33,120 for future nursing care for ten years.
Digest :
Sundharan a/l Ramasamy & Anor v Loo Soon Mook @ Loo Koon Lay & Anor Civil Suit No 25-231-1987 High Court, Taiping (Abdul Malik Ishak JC).
561 Personal injuries -- Leg fracture
6 [561]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Gratuity and pension Interest on damages Assessment of damages Fracture of left femur Compulsory retirement Whether gratuity and pension should be brought into account Payment of interest.Summary :
In this case, the plaintiff, a police constable, had been injured in a road accident. He suffered a fracture of the left femur and abrasions. As a result of his injuries he was retired from the police force. Liability was admitted and the only question for determination was the quantum of damages.
Holding :
Held
: (1) the gratuity and pension received by the plaintiff from the government should not be brought into account in assessing damages for loss of earnings; (2) in the circumstances, the plaintiff would be awarded RM27,500 for loss of earnings, RM10,000 for pain and suffering and loss of amenities and special damages; (3) interest is awarded to a plaintiff for being kept out of money which ought to have been paid to him and in this case interest would be awarded on the RM10,000 from the date of the service of the writ until judgment but not on the general damages of RM27,500 for loss of future earnings. Interest on the special damages would be payable from the date the amount was claimed, that is at the date of the amendment of the writ.Digest :
Mohamed Yusof v Tin Huck & Anor [1973] 1 MLJ 48 High Court, Kuala Lumpur (Suffian FJ).
562 Personal injuries -- Leg fracture
6 [562]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Gratuity and pension Whether to be taken into account Assessment of damages Compulsory retirement as result of injury Whether gratuity and pension should be taken into account Civil Law Act 1956, ss 3(1) and 7.Summary :
This was an appeal from the decision of Suffian FJ (reported in [1973] 1 MLJ 48). The respondent, a police constable, had been injured in a road accident. He suffered a fracture of the left femur and abrasions. As a result of the injuries he was retired from the police force. Liability was admitted and the only question for determination was the quantum of damages. The learned judge held that in assessing damages for loss of earnings, the gratuity and pension received by the respondent should not be brought into account.
Holding :
Held
: (1) the award of RM$10,000 for pain and suffering and loss of amenities in this case was on the high side and should be reduced to RM5,000 which would be more in accord with the discernible pattern in comparable cases; (2) as the gratuity and pension in this case were non-contributory, they should have been taken into account and deducted from the damages awarded.Digest :
Tin Huck & Anor v Mohamed Yusof [1973] 2 MLJ 62 Federal Court, Ipoh (Ong CJ, Gill and Ong Hock Sim FJJ).
563 Personal injuries -- Leg fracture
6 [563]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Heel-boneSummary :
In this case, the plaintiff aged 57, a labourer, sustained a compound fracture of his right heel-bone. As regards general damages the court awarded, S$5,000 for pain and suffering and loss of amenities. Taking into consideration the fact that the plaintiff was 57 years old and allowing for contingencies, the court awarded him general damages for loss of future earnings for two years at the rate of S$150 a month amounting to S$3,600.
Digest :
Chozi v Chitrasenan [1964] MLJ 367 High Court, Singapore (Ambrose J).
564 Personal injuries -- Leg fracture
6 [564]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Lacerations Personal injuries Loss of future earnings Shortening of leg by [1/2]".Summary :
The plaintiffs claimed damages in respect of personal injuries sustained by them in a road accident involving a car driven by the first plaintiff and a car driven by the first defendant. He suffered fractures of right mid-femur and right humerus, lacerated wounds of 2 inches long above the right eyebrow and lacerated wounds around right elbow joint and the left knee. It was the contention of the plaintiffs that the first defendant was negligent in driving on the wrong side of the road.
Holding :
Held
: An agreed sum of RM13,000 was awarded for pain and suffering. RM15,217.20 was awarded for loss of future earnings.Digest :
Lim Gaw Teong & Anor v Daniel & Anor [1968] 1 MLJ 277 High Court, Muar (Ali J).
565 Personal injuries -- Leg fracture
6 [565]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Leg Tibia/fibula compound fracture 1.5 cm shortening.Summary :
The respondent was injured and hospitalized for about four days and discharged at his own request. The medical report showed that the respondent suffered from a 1[1/2]" laceration over the right upper tibia/fibula region with clinically compound fracture of right upper tibia/fibula. A toilet and suture was done for laceration. The fractures in the lower leg reduced and immobilized in plaster-of-paris case. Subsequently on 11 November 1982 the respondent was further examined by the consultant orthopaedic surgeon, Penang Medical Centre, who confirmed the injuries and concluded that the patient had sustained an open fracture of the tibia at the junction of its upper one-third and lower two-thirds which had united solidly but in a moderately severe angulated position. The fibula had been broken at two sites in the shaft; the upper fracture was not united but the lower fracture was solidly united. As a result, he had leg shortening of 1.5 cm with a slight limp when walking. He also had slight knee stiffness and a weaker lower limb. The 1.5 cm limb shortening was permanent. There was a danger of osteoarthritis arising in the knee in later years. The doctor was also of the opinion that if the patient had not discharged himself from the General Hospital to seek indigenous treatment, the shortening would probably be less in the region of 0.5 to 1 cm and the fracture would have ended up with less deformity. The learned trial judge awarded RM20,000 to the respondent as general damages, ie RM18,000 for pain and suffering and RM2,000 for loss of amenities. The trial judge found that prior to the accident the respondent was earning RM536 per month as a padi planter but about one year after the accident his income was around RM118. Based on this, the learned judge gave an award of RM37,351 for special damages, being loss of income up to the date of trial, and RM41,617.05 for general damages for loss of future earnings. The appellant appealed against the award of damages.
Holding :
Held
: (1) the award of RM18,000 for pain and suffering made by the trial judge was fair and reasonable and in no way excessive; (2) the award of RM37,351 under special damages for loss of earnings was fair and reasonable and in no way excessive; (3) the trial judge took into consideration the respondent's failure to mitigate the damages by leaving the General Hospital on his own accord when he deducted 25% from the respondent's monthly earning of RM418 and made the award of RM41,617.05 under loss of future earnings on the basis of RM320 monthly earnings multiplied by sixteen years' purchase. He had not erred in so doing.Digest :
Goh Ah Ba v Mohamed Zain bin Sudin [1987] 1 MLJ 119 Supreme Court, Kuala Lumpur (Salleh Abas LP, Syed Agil Barakbah and Wan Hamzah SCJJ).
566 Personal injuries -- Leg fracture
6 [566]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Ribs and liver Special damages for 12 months following accident Abolition of post No prospect of continued employment.Summary :
The appellant sustained severe injuries involving a compound fracture of a leg and the fracture of five or six ribs with complications. There was also an injury to the liver and concussion. The learned trial judge awarded S$10,000 damages. On appeal as regards quantum Rose CJ delivering the judgment of the Court of Appeal said: 'As regards the general damage, while perhaps the sum awarded is on the low side, we consider that in the light of the principles which guide appeal courts in these matters it cannot be said that the sum is manifestly too low. The award of S$10,000 must therefore remain undisturbed.'
Digest :
Quek Seng Hee v Wah Kim Beng [1959] MLJ 215 Court of Appeal, Singapore (Rose CJ, Tan Ah Tah and Buttrose JJ).
567 Personal injuries -- Leg fracture
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture Spine injuries Quantum Leg and spine injuries.
Summary :
The plaintiff suffered the following injuries: (a) fracture of the right tibia and fibula; (b) fracture of thoracic vertebrae 11 and 12 and first lumbar vertebrae; (c) [1/2] inch shortening of his right leg resulting in a limping gait and compensatory twisting of the spine with probability of back pain in later years; (d) weak right leg and inability to stand for long. The plaintiff was 37 years old at the time of accident and was self-employed as a carpenter earning before the accident RM18 per day.
Holding :
Held
: Damages were assessed as follows: (i) General damages for pain and suffering and loss of amenities, ie for the fracture of the right tibia and fibula, fracture of the ribs and [1/2] inch shortening of the right leg RM20,000; (ii) Special damages (agreed) RM435; (iii) Loss of earnings: Post-trial RM38,400, Pre-trial RM16,260; (iv) Damages awarded were reduced by 20% accordingly.Digest :
Ong Teik Seng v Ho Swee Chee [1987] 2 MLJ 650 High Court, Alor Setar (Mustapha Hussain J).
Annotation :
[Annotation:
The defendant's appeal against the decision of the court in this case was allowed to the extent that the award for future loss of earnings be substituted by an award for loss of earning capacity in the sum of RM10,000 on the basis of 100% liability. Half of costs of appeal to appellant. Deposit to appellant.]568 Personal injuries -- Leg fracture and amputation
6 [568]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture and amputation Fracture of upper tibia of left leg with haemarthrosis on left knee Loss of left leg Leg amputated.Summary :
As a result of the accident, the plaintiff suffered a close fracture at the upper tibia of his left leg with haemarthrosis of his left knee. Initially when the plaintiff went to the casualty unit of the General Hospital the doctor on duty covered the plaintiff's leg with plaster-of-paris. The plaintiff suffered severe pain. Thereafter the severe pain was diagnosed as Volkmann's Ischemia. The plaintiff underwent numerous hospital treatments. Despite this, he completely lost the use of left leg. It had become shorter by six inches. There was deformity on his ankle. He could not dorsiflex his foot nor feel any sensation to it. Subsequently the left leg was amputated below the knee. The plaintiff sued the first defendant and the second defendant, the government of Malaysia. At the date of the trial, the plaintiff was 45 years old. He was a moulder earning a monthly salary of RM575.
Holding :
Held
: (1) the first defendant is 20% liable and the second defendant is 80% liable; (2) general damages are awarded as follows: (a) fracture to upper tibia of left leg with haemarthrosis on left knee RM3,500 (b) loss of left leg RM50,000 (c) loss of future earnings RM21,957. Damages for loss of future earnings totalling RM21,957 was to be borne wholly by the second defendant following the decision in Kow Nan Seng's case; (3) special damages of RM4,900 as agreed between the parties is awarded; (4) costs were awarded to the plaintiff and were to be borne by both defendants in proportion to their liability.Digest :
Kathavarayan v Ng Sup Moi & Anor [1987] 1 MLJ 246 High Court, Kuala Lumpur (Siti Norma Yaakob J).
569 Personal injuries -- Leg fracture and shortening
6 [569]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture and shortening Personal injuries Leg [1/2]" shortening Compound fracture of tibia and fibula.Summary :
This was a claim for damages for personal injuries sustained in an accident arising from a collision between a taxi driven by the defendant and a motor cycle ridden by the plaintiff. On the facts, it appeared that the plaintiff was riding this motor cycle and following the taxi driven by the defendant. The taxi suddenly stopped and the motor cycle then knocked against the taxi. The plaintiff suffered from a compound fracture of the left tibia and fibula resulting in a [1/2]" shortening of the leg and some slight wasting in the girth of the left calf and thigh. The fractures have since healed.
Holding :
Held
: in this case, on the facts, both the plaintiff and the defendant were equally to blame for the collision and therefore the plaintiff was entitled to half the agreed general damages of S$5,000 and half the special damages.Digest :
Kwek How Bok v Lee Sin Kweng [1966] 1 MLJ 185 High Court, Singapore (Winslow J).
570 Personal injuries -- Leg fracture and shortening
6 [570]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg fracture and shortening Rib fractures Loss of future earnings 37-year-old surveyor Fracture of right tibia & fibula Fracture of femur, scapula and ribs Leg 1" shortening.Summary :
The plaintiff was employed by the defendants, a firm of building contractors, as a surveyor. He was struck by a piece of piping which fell from a boring machine. He suffered various injuries: (1) a compound fracture of the end of the right tibia and fibula involving the right knee; (2) fracture of the shaft of the left femur; (3) fractures of the third, fourth, fifth, sixth and seventh left ribs; (4) fracture of the neck of the left scapula. His left leg was shortened by 1 inch.
Holding :
Held
: RM17,000 was awarded for pain and suffering and RM15,000 was awarded for loss of future earnings.Digest :
Sukumaran v Building Construction Co (Malaya) Ltd [1969] 1 MLJ 233 High Court, Kuala Lumpur (Abdul Aziz J).
571 Personal injuries -- Leg injuries
6 [571]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries Accident Defendant solely liable Plaintiff suffered leg injuries Permanent disability and shortening Quantum.Summary :
The plaintiff, a lorry attendant, suffered leg injuries when he was involved in a road accident caused solely by the negligence of the defendant. Consequently, he was hospitalized for six months. He could not carry heavy loads and had difficulty in climbing up and down. He suffered permanent disabilities in the right leg. There was shortening and wasting of his right thigh and leg with restriction of movements at the knee and ankle.
Holding :
Held
: special damages of RM3,025 and general damages of RM27,000 (RM11,000 for loss of future earnings and RM16,000 for pain and suffering) should be awarded to him.Digest :
Teh Choon Seng v Khoo Eng Khoon [1978] 2 MLJ 68 High Court, Kuala Lumpur (Abdul Hamid J).
572 Personal injuries -- Leg injuries
6 [572]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries Duty to mitigate Loss in future earnings Duty to mitigate Injured person leaving hospital against medical advice.Summary :
The respondent was awarded damages for injuries sustained by him in the course of loading logs onto a conveyor belt upon a finding of negligence on the part of the employers. A sum of RM42,000 was awarded for loss of future earnings. The appellant appealed, alleging that the learned trial judge erred in his award of future loss of earnings to the respondent against the weight of the medical reports and in particular, against the learned judge's failure to consider the duty placed upon the respondent to mitigate the damage. It appeared on the facts that the respondent left the hospital against medical advice.
Holding :
Held
: (1) it was erroneous to assess the loss of future earnings without considering the duty of the respondent to mitigate the damage. The error was one of principle and it was therefore open for the appellate court to interfere; (2) in the circumstances, the award for loss of future earnings should be reduced to RM21,000.Digest :
Yoong Leok Kee Corp Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21 Federal Court, Kuala Lumpur (Suffian LP, Salleh Abas and Abdul Hamid FJJ).
573 Personal injuries -- Leg injuries
6 [573]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries Exercise of statutory duty Leg injuries Assessment of quantum Liability apportioned at 75/25.Summary :
The plaintiff, a 19-year-old student, sustained leg injuries when his motor cycle collided into a motor car. He suffered the following injuries: (i) fracture in the shaft of the left femur; (ii) swelling with deformity and tenderness in the left thigh; (iii) compound fracture of the right femur; (iv) two puncture wounds, one over medial and the other over the lateral aspect of the right thigh; and (v) loss of a right leg below the knee. As a result of the accident, the plaintiff could not squat anymore and had difficulty in climbing steps. On the facts, it appeared that the plaintiff had executed a U-turn without looking behind. If he had done so he would have seen the car, which had the right of way.
Holding :
Held
: (1) the statutory right of way of a driver must be used with due regard to the rights of others. Therefore, if a driver knows or ought to know that some other person by that person's fault is in a position of danger, the statutory right of way cannot be exercised without care being taken to avoid the consequences of that other's fault; (2) the defendant should have in the circumstances of this case taken care to avoid the consequences of the plaintiff's fault. His liability should be assessed at 25%; (3) the plaintiff by his foolish act in making a U-turn without looking behind him was guilty of contributory negligence and his culpability should be assessed at 75%; (4) as general damages had been agreed at RM40,000 judgment will be given for the plaintiff for RM10,000 as general damages and RM1,340 for special damages.Digest :
Wong Mun Kong v Pacific & Orient Underwriters (M) Sdn Bhd [1978] 1 MLJ 183 High Court, Penang (Gunn Chit Tuan J).
574 Personal injuries -- Leg injuries
6 [574]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries General damages for injuries suffered by plaintiff Loss of future earnings Assessment by trial judge Not inordinately excessive in light of cases.Summary :
In this case, a motor cycle ridden by the respondent collided with a motor car driven by the first appellant and owned by the second. The appellants had admitted liability and the only issue was as to quantum. The appellants appealed against the award of RM15,000 for general damages in respect of injuries and the award of RM24,000 for loss of future earnings. It was argued that (a) the award for general damages was too high as the respondent had ignored medical advice and also because the award was higher than the usual level; (b) the award for loss of earnings was too high and the award should be for RM12,000 only as the respondent could do light work after the accident.
Holding :
Held
, dismissing the appeal: the learned trial judge had not acted on wrong principles of law or misapprehended the facts or made a wholly erroneous estimate of the damage suffered. The quantum of damages awarded was not inordinately excessive in the light of the cases.Digest :
KMI Basheer Ahmad & Anor v Rahmat bin Shwall [1977] 2 MLJ 60 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).
575 Personal injuries -- Leg injuries
6 [575]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries Leg Lower limb.Summary :
This was an appeal against the decision of the High Court where it had been held that both the appellant, the rider of the motor scooter, and the second respondent, the driver of the motor car, were blameworthy for the accident which had occurred in the proportion of one-third to the appellant and two-thirds to the respondent. The learned judge also dismissed the action against the first respondent, the owner of the motor car, who was the wife of the driver, the second respondent, on the ground that the second respondent was not driving as her agent at the material time. The appellant appealed to the Federal Court.
Holding :
Held
: (1) on the facts as well as the findings of the court, the learned judge should have held that the accident was caused solely by the negligence of the second respondent and that the appellant was in no way to be blamed for the collision. Having regard to the specific findings of the learned judge, the appellant could not reasonably have avoided the consequences of the second respondent's negligence in turning from a side road into a main road without stopping at the junction; (2) it was not correct for the learned judge to decide on the question of agency without hearing the owner of the motor car unless her absence could be accounted for. In the absence of evidence, the learned judge should have ruled that the presumption that the driver of the car was driving as the servant or agent of the owner applied; (3) the sum of RM3,705 which had been advanced by the employers of the appellant should form part of the special damages for loss of earnings and the sum when received from the respondents should be returned to the employers; (4) the sum of RM5,000 awarded for general damages was within the figure commonly awarded for similar injuries of the lower limb of the leg and should not be disturbed.Digest :
Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61 Federal Court, Kuching (Lee Hun Hoe CJ (Borneo).
576 Personal injuries -- Leg injuries
6 [576]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries Leg amputationSummary :
The plaintiff contended that the car which the defendant was driving had been going very fast. The car overtook some parked vehicles and a motor cycle before it went over to the other side of the road. The plaintiff was on his motor cycle on the other side of the road and was knocked down by the car which the defendant was driving. The plaintiff was thrown off his motor cycle and landed some distance away. The plaintiff sustained injuries as a result of the accident he had fractures and his right leg was amputated 15cm below the knee. He suffered from incontinence and impotence, which could be corrected by surgery. The plaintiff was now forced to move around with the help of crutches. The plaintiff used to be a hockey player for the state of Penang prior to his injury. The plaintiff claimed damages against the defendant for injuries sustained as a result of the accident, pain and suffering, special damages (for surgery and medical treatment) and damages for loss of earnings.
Holding :
Held
: (1) the defendant was liable in damages for loss of amenities, pain and suffering and other personal injuries at RM106,500; (2) the defendant was liable for special damages at RM66,517; (3) the defendant was liable in damages for loss of earnings, pre and post-trial, at RM88,100; (4) the total amount of damages awarded on a 100% liability is RM261,117. The plaintiff was awarded 75% of the amount with costs.Digest :
Rajinder Singh s/o Balwang Singh v Koay Teong Chooi Suit No 23-35-89 High Court, Penang (KC Vohrah J).
577 Personal injuries -- Leg injuries
6 [577]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries Personal injury Leg.Summary :
The plaintiff sued the defendant for damages for personal injuries suffered by him in a road traffic accident where his motor cycle ridden by him was involved in a collision with a motor car driven by the defendant. The plaintiff suffered the following injuries: (1) Closed fracture midshaft of right femur; (2) Avulsion of right posterior cruciate ligament with haemarthrosis of the knee-joint; (3) Fracture lower pole of right patella; (4) 2[1/2] cm laceration front of right knee. He had some loss of knee flexion which prevented him from squatting fully, and had an intramedullary nail introduced into the femur to fix the fracture which had to be removed by a further operation. The plaintiff was treated as an inpatient at the hospital for about a month.
Holding :
Held
: (1) on the facts the plaintiff was two-thirds and the defendant one-third to blame for the accident; (2) general damages for all the injuries was assessed at S$8,000.Digest :
Tan Ah Chye v Chin Kon Sang [1976] 2 MLJ 237 High Court, Singapore (Kulasekaram J).
578 Personal injuries -- Leg injuries
6 [578]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg injuries Trend of awards Personal injuries Quantum of damages Damages for pain and suffering and loss of amenities Loss of future earnings Leg 1" shortening Multiple injuries.Summary :
The plaintiff, a second water jointer engaged by the Public Utilities Board, earning S$133.65 per month, received the following injuries: (a) compound comminuted fracture of lower third shaft of left tibia, fracture also involving medial malleolus; (b) crack fracture of posterior tubercle of left talus; (c) fracture of head of fourth left metatarsal with dislocation of fourth left metatarsophalangeal joint; (d) fracture of base of proximal phalanx of left third toe; (e) fracture of upper end of shaft of left fibula; (f) laceration 6 inches ΄ 2 inches ΄ [1/2] inch over front and medial aspects of left ankle joint; (g) laceration 1 inch ΄ [1/4] inch ΄ [1/4] inch under chin; (h) abrasions over left knee, right knee, right thigh and right elbow. Medical examination showed: he walked with a marked limp and was not able to run; squatting too was difficult; fracture had united but there was about [3/4] inch to 1 inch shortening in left leg, 1 [1/2] inches of wasting in left calf and 1[1/4] inches wasting in left thigh; left hip and knee normal; mild equinus deformity at left ankle and slight deformity in foot; marked scarring over front of ankle and foot; movements at ankle were painful and limited; movements at joints in foot were markedly restricted and painful; about 80% loss in movements in these joints. Medical opinion: he has suffered severe injuries to his leg and foot; this has left him with a deformed short leg; moreover ankle and other joints in the foot were affected and already showed signs of osteoarthritis which would get worse with time. The trial judge awarded S$10,000 for pain and suffering and loss of amenities and S$5,000 for loss of future earnings. On appeal,
Holding :
Held
: (1) the award of S$10,000 for pain and suffering and loss of amenities was too low and was so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as having been a wholly erroneous estimate and that it should be increased to S$20,000; (2) in the circumstances of the case, the award of S$5,000 for loss of earnings was too low and should be increased to S$10,000.Digest :
Othman bin Ahmad v Singapore Traction Co Ltd [1966] 1 MLJ 64 Federal Court, Singapore (Tan Ah Tah Ag CJ, Buttrose and Chua JJ).
579 Personal injuries -- Leg shortening, multiple injuries
6 [579]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening, multiple injuries Method of assessment Trend of awards Personal injuries Quantum of damages Damages for pain and suffering and loss of amenities Loss of future earnings Leg 1" shortening Multiple injuries.Summary :
This was an appeal by the plaintiff against the award of damages (noted at [1965] 1 MLJ xxvi) made in an action brought by the plaintiff against the defendants for damages for personal injuries suffered by the plaintiff and caused by the negligence of the defendant's servant in driving a motor bus. The plaintiff suffered severe injuries to his left leg and these have left him with a deformed foot and short leg. Moreover the ankle and other joints in the foot were affected and showed signs of osteoarthritis which would on the medical evidence get worse with time. The trial judge awarded S$10,000 for pain and suffering and loss of amenities and S$5,000 for loss of future earnings.
Holding :
Held
: (1) the award of S$10,000 for pain and suffering and loss of amenities was too low and was so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as having been a wholly erroneous estimate, and it should be increased to S$20,000; (2) in the circumstances of the case, the award of S$5,000 for loss of future earnings was too low and should be increased to S$10,000.Digest :
Othman bin Ahmad v Singapore Traction Co Ltd [1966] 1 MLJ 64 Federal Court, Singapore (Tan Ah Tah Ag CJ, Buttrose and Chua JJ).
580 Personal injuries -- Leg shortening
6 [580]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Advance payment by employer Leg injuries [1/2]" shortening Plaintiff awarded $7,500 for pain and suffering and loss of amenities and $6,000 for loss of earnings.Summary :
The present case involved the claim of the first plaintiff only as the claims of the second and third plaintiffs had been settled. The plaintiff in this case claimed for personal injuries and loss suffered as a result of a road accident caused by the negligence of the first defendant, the driver of the car in which the plaintiff was travelling. The plaintiff suffered the following injuries: (a) left thigh deformed and bruised just above the knee (b) two lacerations 1 cm each over shin of left leg; (c) right leg 1 cm laceration anterior border; and (d) a fracture of the function of lower one-third and mid one-third of left femur. The left leg was shortened by [1/2] inch. The plaintiff walked with a slight limp and had difficulty in climbing stairs. The plaintiff, aged 51, was the chief broker in the HCB company. He earned a comparatively small salary of RM650 per month and a bigger brokerage commission, which varied according to his own contribution towards business turnover and rubber market condition. He was employed by HCB under a contract for service. During the six-month period of incapacity, HCB company settled the first plaintiff's hospital bills and paid his salary and brokerage commissions for six months.
Holding :
Held
: (1) where, however, the injured plaintiff receives the money as of right from the employer, either under statutory or contractual obligations, the money received is deductible; (2) the proposition that there should be no reduction where the money is given gratuitously or advanced by a sympathetic employer is based on the principle that the generosity of others is res inter alios acta and not something from which the wrongdoer should reap the benefit;the plaintiff should be awarded RM13,500 as general damages, RM7,500 for pain and suffering and loss of amenities and RM6,000 for loss of earnings on brokerage; RM24,742.32 as special damages on condition that out of RM24,742.32, the sum of RM24,331.82 should be paid to HCB company.Digest :
Lim Kiat Boon & Ors v Lim Seu Kong & Anor [1980] 2 MLJ 39 High Court, Kuala Lumpur (Mohamed Azmi J).
581 Personal injuries -- Leg shortening
6 [581]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Discharged against medical advice Personal injuries Leg Right femur 1" shortening.Summary :
In this case on the facts, the learned trial judge found that the defendant was wholly to be blamed for the accident. The plaintiff, who was a minor, was admitted to hospital but she was discharged from the hospital against medical advice and as a result suffered 1" shortening of her right lower limb.
Holding :
Held
: the plaintiff should not be penalized as she being a minor was not in a position to give consent for discharge from the hospital against medical advice. The damages awarded should not be reduced because she was discharged against medical advice.Digest :
Wan Norsiah bte Wan Abdullah v Che Harun bin Che Daud [1980] 1 MLJ 237 High Court, Kota Bharu (Mohamed Zahir J).
582 Personal injuries -- Leg shortening
6 [582]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Facial disfigurement Marriage prospects Personal injuries Multiple lacerated wounds on face Noticeable scars and keloid formation Fractures Shortening of leg by 1 [1/2]" Physical disability not affecting employment Disfigurement of face and physical disability impairing prospects of marriage.Summary :
The first plaintiff, Saniah, a junior agricultural assistant, 19 at the time of the accident, was hospitalized from 16 December 1961 to 22 March 1962. She suffered the following injuries: multiple lacerated wounds of the right chin and face; lacerated wound 1 inch long just lateral to the left eye; haematoma on the ventral surface of the left forearm; fracture of right femur; fracture of the left femur; fracture of the left clavicle; fracture of right ulna; fracture of left radius, lower end. On 20 December 1963 medical examination showed that the skin over the two linear scars on right side of the face had slightly thickened and showed some degree of keloid formation; the fractures of the thigh bones had united with a slight degree of overlapping and mal-alignment of the bones; she walked with a limp owing to the shortening of her right leg by 1 [1/2] inches a condition which would later contribute towards osteoarthritis. Her physical disability had not affected her employment, but she feared that it might have diminished her prospects of promotion and she claimed that the disfigurement of her face and her physical disability had impaired her prospects of marriage.
Holding :
Held
: (1) damage in respect of reduced prospects of marriage fell under the head of loss of amenities. In this case, Saniah's prospects of marriage had been reduced by her loss in appearance and gait as a result of the injuries sustained in the accident; (2) taking all the facts and circumstances into consideration including reduced prospects of marriage, general damages assessed at RM20,000.Digest :
Saniah & Ors v Abdul Hamid & Ors [1967] 2 MLJ 255 High Court, Ipoh (MacIntyre J).
583 Personal injuries -- Leg shortening
6 [583]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Failure to plead pre-trial loss as an item of special damage Leg Shortening 1" 30% disability Pain and suffering Loss of earning.Summary :
In this case, the respondent who was riding a bicycle was knocked down by the first appellant who was driving a motor car in the opposite direction. As a result he suffered a trochanteric fracture of his left femur which resulted in a 1 inch shortening of his left leg. The learned trial judge recorded the injuries as follows: '(a) 30% permanent disability, (b) 1 inch shortening of left leg; (c) unfit for jobs that require continuous use of both lower limbs'. The learned trial judge also found as follows: 'After the accident his wife and one of the sons help him to tap the rubber trees. The plaintiff is now 43 years old. He met the accident on 2 December 1978 when he was about 39 years old. Up to the date of accident (2 December 1978) plaintiff alone was tapping the rubber trees on the land allotted to him, right from the day he became a settler. His net income before the accident was: (i) in 1977 RM3,408.53; (ii) in 1978 RM3,316.71. His net income after the accident with his wife and son working are: (a) 1979 RM2,818; (b) 1980 RM4,556; (iii) 1981 RM4,594 (skipping the cents). For one year after the accident (ie from December 1978 to December 1979) he could not work at all. Now, he can only assist his wife and son. Plaintiff has to give money to his son as wages, otherwise he would not work. He gives one-third of the income to his son. And if his son does not want to work he has to engage someone to do the work. His earning will be one-quarter of joint earnings with the wife after deducting one-third to his son.' The learned trial judge had to decide only on the question of quantum, 100% liability having been conceded by the appellants. His award was as follows: '1. The defendants to pay the plaintiff: Special damage of RM1,660 (as agreed) with 3% interest per annum from date of filing of writ to date of realization of judgment. 2. Loss of earnings pre-trial amount to RM14,795 with 6% interest per annum from date of accident to date of realization of judgment. 3. Loss of future earning capacity RM21,705.60. 4. Pain and suffering RM15,000 with 6% interest from date of accident to date of realization of judgment.' The appellants appealed against quantum.
Holding :
Held
: (1) as the pre-trial loss of earnings had not been pleaded as an additional item of special damages, the sum was wrongly allowed; (2) on the facts, the respondent's average income before the accident should be calculated at RM3,400 per annum. The average income after the accident (including son's and wife's efforts) should be RM4,000. After deduction of one-third wages paid to the son, that is RM1,330 per annum, the balance of the joint income of the husband and wife is RM2,670. From the plaintiff's income before the accident, that is RM3,400 per annum, should be deducted the sum of RM2,670 leaving RM730 per annum as the net loss of future earning. At eight years' purchase according to the annuity table, the sum awarded would be RM4,700, rounded off to RM5,000; (3) the appeal against quantum will be allowed and the following figures awarded: (i) Special damages of RM1,660 as agreed with 3% interest per annum from date of accident to date of judgment; (ii) Loss of future earning RM5,000; (iii) Pain and suffering ÊRM15,000 with 6% interest per annum from date of service of writ to date of judgment; (iv) Interest at 8% per annum on items (i), (ii) & (iii) from date of judgment to date of realization. 5. Costs here and below.Digest :
Tan Lin Siew & Anor v Syed Hussein bin Alwi [1987] 2 MLJ 53 Supreme Court, Kota Bahru (Wan Suleiman, Syed Agil Barakbah and Wan Hamzah SCJJ).
584 Personal injuries -- Leg shortening
6 [584]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Foot deformity Liability agreed on a 50/50 basis Damages awarded Appeal against quantum Skin-grafting Shortening of right leg Deformity of foot.Summary :
On 14 October 1969, the first plaintiff aged seven years, was knocked down by motor bus No BD2019 driven by the first defendant. It was agreed between the parties that liability was on a 50/50 basis. As a result of the aforesaid accident, both the first plaintiff and his father, the second plaintiff, suffered loss and expense. The first plaintiff endured much pain and suffering. He had to undergo skin-grafting and the donor areas left permanent ugly scars to the left leg and both thighs. His right leg and right foot suffered shortening and there were injuries to the toes including the loss of one toe. There was a likelihood that he might develop arthritis in his ankle joint and his right big toe and possibly pain in his right foot as a result of his deformities and injuries in the future. Special damages in the sum of of RM3,400 for the first plaintiff and RM650 for the second plaintiff based on a 100% liability was agreed between the parties. The court awarded the first plaintiff the sum of RM$19,000 as general damages with interest. This was based on 50% liability.
Holding :
Held
: the injuries were substantial having regard to the skin-graftings, shortening of the right leg and deformity of the right foot. Having regard to all the circumstances of the case, including the age of the boy, the amount awarded was fair and reasonable.Digest :
Paramasivam & Anor v Abdul Aziz & Ors [1976] 2 MLJ 91 High Court, Kuala Lumpur (Mohamed Azmi J).
585 Personal injuries -- Leg shortening
6 [585]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Hand injuries Loss of future earnings Domestic servant Disablement due to injuries sustained Employment by British Services personnel Gradual pull out of British Services Future employment Leg 2 [1/2]" shortening Osteoarthritis in right knee Hand Compound fracture of right metacarpal bone and fracture dislocation of proximal interphalangeal joint of right ring finger.Summary :
Per curiam:
'in assessing damages for loss of future earnings of a domestic servant employed by a UK-based civilian employee of the British Services in Singapore, the prospects of her regular employment after the complete withdrawal of the British Services from Singapore by the end of 1971 have to be taken into consideration.' The second plaintiff was riding pillion on a motor cycle ridden by the first plaintiff when their motor cycle was knocked down by a car driven by the defendant. The first plaintiff sustained a compound fracture of the right metacarpal bone and a fracture dislocation of the proximal interphalangeal joint of the right ring finger. The second plaintiff had a fracture of the right femur and a fracture of the right first metatarsal bone. She had a 2 [1/2] inches shortening of the right leg. There was evidence of osteoarthritis in the right knee.Holding :
Held
: (1) the first plaintiff was to be awarded S$3,000 as general damages for his injuries; (2) the second plaintiff was to be awarded S$20,000 for her injuries and S$9,988.80 for loss of future earnings.Digest :
Abdul Hamid & Anor v Tan Chu Kim [1969] 2 MLJ 215 High Court, Singapore (Choor Singh J).
586 Personal injuries -- Leg shortening
6 [586]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Hip dislocation Personal injury Hip Dislocation of Leg Fracture Shortening Limited flexion of knee Limitation of extension Wasting of thigh muscle Damages Assessment of Application of wrong principle Misapprehension of fact.Summary :
The appellant, a 23-year-old itinerant hawker, suffered personal injuries in consequence of a motor vehicle accident. He had a dislocation of the right hip and a fracture of the acetabulum. There was a fracture of the lower end of the right femur with injuries to the right sciatic nerve. His condition at the time of the trial was, inter alia, a 1-inch shortening of the right leg and 40% flexion of the right knee. Liability was admitted and he was awarded RM10,000 general damages and RM1,870 special damages. On appeal against the award on general damages,
Holding :
Held
: (1) the amount of damages awarded was inadequate; (2) there had been a misapprehension of facts in that the learned trial judge had paid insufficient, if any, regard to the question of probable loss of earnings; (3) damages assessed at RM18,000.Digest :
Abdul Majid v Pahang Lin Siong Motor Co Ltd & Anor [1963] MLJ 346 Court of Appeal, Kuala Lumpur (Thomson CJ, Barakbah JA and Neal J).
587 Personal injuries -- Leg shortening
6 [587]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Injuries self-aggravated Injured plaintiff discharging himself from hospital against medical advice Unsuccessful treatment by bomoh Readmission to hospital Serious permanent disability.Summary :
The plaintiff, an infant, suffered a fracture of the right femur and a few minor lacerations. A plaster cast was applied to his injured leg. He discharged himself from the hospital against medical advice 40 days later. Thereafter, the leg was treated by a bomoh who removed the plaster cast. The said treatment lasted for a month and was unsuccessful. The plaintiff readmitted himself into the hospital and remained there for three days. Shortening was 2[1/2] inches and was due to a maltreated fracture. He walked with a limp. Disability was serious and permanent.
Holding :
Held
: the plaintiff was to be blamed for having failed to mitigate his injuries by his own action in getting a discharge against medical advice and undergoing treatment under a bomoh on his own initiative before being readmitted. The disabilities including the shortening of his leg would not have been serious had he stayed on in the hospital for full treatment. Shortening of the leg deducted by half and accepted as 1[1/4] inches. RM16,000 for pain and suffering and loss of amenities and RM2,000 for loss of future earnings.Digest :
Yahaya bin Mat & Anor v Abdul Rahman bin Abu [1983] 1 MLJ 302 High Court, Alor Setar (Syed Agil Barakbah J).
588 Personal injuries -- Leg shortening
6 [588]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Interest on damages Compound fracture of the right leg, [1/4]" shortening and abrasion on the face Liability admitted Quantum in dispute Interest on general damages.Summary :
The plaintiff, a 42-year-old padi planter and owner of a piece of padi land, was injured as a result of an accident involving the scooter on which he was a pillion rider and a motor lorry driven by the first defendant. The second defendant was the owner of the said lorry. The plaintiff sustained compound fracture of the right leg, [1/4] inch shortening and abrasion on the face. X-ray revealed that there was comminuted fracture in the mid-shaft of the right tibia and fibula.
Holding :
Held
: (1) the plaintiff was awarded a total sum of RM18,000 as general damages: RM10,000 for pain and suffering, including [1/4] inch shortening of the right leg, RM3,000 for loss of amenities and RM5,000 for loss of future earnings; (2) no interest on general damages for pain and suffering was awarded. However, interest on special damages at 3% was awarded from the date of the accident until the date of trial.Digest :
Abdul Hamid v Ooi Teik Ean & Anor [1979] 1 MLJ 244 High Court, Alor Setar (Syed Agil Barakbah J).
589 Personal injuries -- Leg shortening
6 [589]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Leg [1/2]" shortening Knee flexion limited to 90‘.Summary :
The plaintiff was injured as a result of a collision which was found to be caused by the negligent driving of the second defendant, who was employed by the first defendant. The plaintiff claimed general damages and also special damages for loss of earnings, special food, travelling expenses incurred by the plaintiff's wife in visiting him daily at the hospital and travelling expenses for himself. As a result of the accident, the plaintiff suffered two permanent disabilities: he walked with a limp due to a [1/2] inch shortening of the leg and he was unable to sit on his haunches owing to limitation in the flexion of the left knee.
Holding :
Held
: (1) in the circumstances of this case, the plaintiff was entitled to claim damages for loss of earnings at the rate of RM200 per mensem from the date of the accident to the date of trial, as his failure to resume his business after his medical treatment was not due to any wilful act of omission to minimise the damages but to circumstances beyond his control. In the present action, the trial commenced about 42 months after the accident. The loss of earnings was therefore estimated at RM8,400; (2) the plaintiff was in the circumstances of this case entitled to recover the travelling expenses incurred by his wife, as the fact that he was bedridden necessitated the presence of his wife in the hospital; (3) taking all factors into consideration, the damages would be assessed at RM12,600 for loss of prospective earnings and RM5,000 for pain and suffering.Digest :
Wong Kong v Yee Hup Transport Co & Ors [1966] 2 MLJ 234 High Court, Ipoh (MacIntyre J).
Annotation :
[Annotation:
The appeal to the Federal Court was allowed. See [1967] 2 MLJ 93. The Federal Court held: (1) the general damages should not be awarded as though they were special damages properly pleaded and proved; (2) taking into account the claimant's disablement, reduction of earning capacity, pain and suffering and loss of amenities, the award will be reduced for actual loss of earnings from RM8,400 to RM2,000 and in lieu of the general damages of RM17,600, the award will be reduced to the sum of RM8,800.]590 Personal injuries -- Leg shortening
6 [590]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Loss of earnings Lack of documentary evidence Court still entitled to make a reasonable award Special damages Plaintiff's duty to mitigate losses Plaintiff left hospital at own risk Second operation needed later Only nominal sum allowedSummary :
The plaintiff claimed damages for injuries arising out of a road accident between the vehicles the plaintiff and the first defendant were driving. Both liability and quantum were disputed. The plaintiff had suffered, apart from other things, the shortening of his leg by 2 cm. He had also left the hospital without the approval of the doctors, in order to seek traditional treatment. Both experts agreed that this had led to the plaintiff requiring further surgery.
Holding :
Held
: (1) based on the authorities available, and taking into account inflation, the plaintiff was awarded RM35,000 for the pain and suffering and loss of amenities caused by the shortening of limb; (2) the plaintiff's failure to produce payslips although he claimed to have received them prevented him from receiving the full sum he claimed with respect to loss of earnings. The witness he called to provide evidence in support of his earning capacity did not have personal knowledge of his pay, and whatever evidence given by him was hearsay and inadmissible; (3) the court was still entitled to make a reasonable deduction as to the earnings of the plaintiff and award him accordingly. In this case, RM900 was deemed fair; (4) he was awarded only a nominal sum with respect to the claim for the expenses incurred for the second surgery because he had failed to mitigate his losses; (4) the evidence that the first defendant had been speeding, that he was in the wrong lane at the time of the accident and the fact that he did not appear in court to challenge the plaintiff's case indicated that liability was solely the defendants';the plaintiff was not awarded any amount for the repair of the lorry because he had failed to prove the lorry belonged to him or that he was going to incur any loss because of the damage to the lorry.Digest :
Nor Azmi bin Abu Daud v Muniandy a/l Doraisamy & Anor Summons No 23-10-1993 High Court, Temerluh (Low Hop Bing J).
591 Personal injuries -- Leg shortening
6 [591]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Multiple injuries Negligence Road accident Vehicle with label 'Riding at your own risk'ÊÊDefence of volenti non fit Injuria Quantum 3 [1/2] cm shortening of left leg Multiple injuries Global sum of $20,000 awarded.Summary :
The plaintiff in this case claimed for damages and loss for personal injuries sustained as a result of a motor accident caused by the alleged negligence of the second defendant. The plaintiff was a passenger in a motor lorry driven by the second defendant who was the servant of the owners of the lorry, the first defendants. The latter submitted that the plaintiff had been warned by the second defendant that he travelled in the motor lorry at his own risk and that the plaintiff was directed to a label 'Riding at your own risk' affixed near the passenger's seat. The defence plea was one of volenti non fit injuria. As a result of the said accident, the plaintiff sustained the following injuries: (i) haematoma of the left thigh; (ii) abrasions over the left forehead, the left forearm and the left loin; (iii) a fracture of the lesser trochanter with a spiral fracture of the shaft of the left femur. He suffered shortening of the left lower limb by 3[1/2] cm and marked restriction of movement of the left lower limb. There were superficial scars over the outer side of the left hip and left buttock area. The plaintiff had great difficulty in walking and he was not able to squat.
Holding :
Held
, allowing the plaintiff's claim: (1) to succeed in raising the defence of volenti non fit injuria, the defendants had to prove that the plaintiff had voluntarily and freely with full knowledge of the nature of the risk he ran impliedly agreed to incur it; (2) in this case, the plaintiff had not travelled in the lorry voluntarily and freely agreeing to undergo the risk that he might incur therefrom nor did the plaintiff know that he so travelled therein at his own risk. The first defendants were therefore vicariously liable for the negligence of the second defendant who was their employee at the material time; (3) the plaintiff was awarded a global sum of RM20,000 for the injuries sustained.Digest :
Teh Hwa Seong v Chop Lim Chin Moh & Anor [1981] 2 MLJ 341 High Court, Johore Bahru (Yusof Abdul Rashid J).
592 Personal injuries -- Leg shortening
6 [592]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Personal injuries caused by negligence Duty of care Volenti non fit injuria Contributory negligence Quantum of damages.Summary :
The plaintiff, an insurance company representative aged 39, sustained a severe injury to the lower end of the left femur; he had also crack fractures of the fourth, fifth and sixth ribs on the right side; there was considerable pain and suffering; as a result there are the following permanent disabilities: (a) shortening of the leg by 2 [1/2] inches; (b) the degree of the movement of the knee is limited to 90‘ while the normal range is 150‘ (according to medical evidence the degree of movement may improve slightly over 90‘; (c) occasional pains in the back. These disabilities will limit the more energetic types of activities; thus the plaintiff who used to play games before the accident is now limited to such exercise as swimming and dancing. The learned trial judge awarded general damages: RM35,000. The Court of Appeal affirmed the assessment.
Digest :
IB Drennan v RF Greer [1957] MLJ 77 Court of Appeal, Kuala Lumpur (Thomson CJ, Abdul Hamid and Neal JJ).
593 Personal injuries -- Leg shortening
6 [593]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Personal injury Leg 1 [1/2]" shortening Permanent limp.Summary :
The plaintiff claimed damages for injuries received by her as a passenger in a motor car driven by the defendant. It appeared that the accident was caused when the defendant tried to avoid running into a buffalo which was crossing the road. The plaintiff suffered a compound fracture of the left femur which resulted in a shortening of the whole limb by 1 [1/2] inches. There was a possibility of other joints being affected in the future, joints of the lumbar spine.
Holding :
Held
: in the circumstances, a sum of RM8,000 would be a fair compensation under the head of general damages.Digest :
Rahmah v Batcha [1966] 1 MLJ 183 High Court, Seremban (Ismail Khan J).
594 Personal injuries -- Leg shortening
6 [594]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Personal injury Leg 3" shortening.Summary :
This claim was for damages in respect of personal injuries sustained by the plaintiffs in a road accident. The second plaintiff, a 23-year-old salesman earning RM180 per mensem, suffered a fracture of the shaft of the right femur and 3 inches shortening. He walked with a limp and could not squat fully because of the injury to his femur 8" below. The main limitation was in the external rotation. The judge awarded general damages as agreed: RM27,000; special damages: RM3,295.
Digest :
Govinda Raju & Anor v Laws [1966] 1 MLJ 188 High Court, Kuala Lumpur (Raja Azlan Shah J).
595 Personal injuries -- Leg shortening
6 [595]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Personal injury Leg Compound fracture of right tibia and simple fracture of right ulna Pain and suffering and lifelong disability not involving invalidism Standardization of damages.Summary :
In this case, the respondent, a 40-year-old switchboard attendant, was injured as a result of a collision between a motor cycle which he was riding and a motor car driven by the appellant. He suffered (a) compound fracture shaft of right tibia at the junction of the upper and middle one-third resulting in a one inch shortening; and (b) simple fracture right ulna. The learned trial judge found negligence on the part of the appellant and awarded, inter alia, RM15,000 general damages. On appeal, on the question of quantum,
Holding :
Held
: (1) the respondent's loss could be comprised under the heads of pain and suffering and a lifelong disability not in any way involving invalidism and not in any way affecting earning power, but to some extent affecting amenity and the enjoyment of living; (2) on the facts and circumstances of this case, a suitable sum by way of compensation would be RM8,500.Digest :
Mamat v Abdul Manaf [1963] MLJ 345 Court of Appeal, Kuala Lumpur (Thomson CJ, Barakbah JA and Neal J).
596 Personal injuries -- Leg shortening
6 [596]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Personal injury Leg Fracture of femur, tibia and fibula Shortening of leg Knee Stiffness and limited flexion Ankle and foot Limited movement Permanent disabilities Pain and suffering.Summary :
Male herbalist shop proprietor aged 61. Fracture of shaft of right femur and lower end of right tibia and fibula. General damages: S$16,000; Special damages agreed at S$2,757.50.
Digest :
Ng Heng Teck v Lee Kwek Chuan [1964] MLJ 133 Federal Court, Singapore (Barakbah CJ (Malaya).
597 Personal injuries -- Leg shortening
6 [597]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening Trend of awards Levelling factor Leg 2" shortening Award Error in principle Levelling factor.Summary :
In this case, the appellant had been injured in a road accident caused by the negligence of the first respondent. He was formerly a cook and at the time of the accident was 52 years old. As a result of the accident, he sustained a fracture of the right femur resulting in a 2 inch shortening of the leg, limitation of flexion of the knee, limited rotation and extension of hip movement and some wasting of the muscle of the right calf and leg. He was awarded RM5,500 for pain and suffering and RM2,000 for loss of future earnings. By way of contrast the learned trial judge in a subsequent case in the same month awarded a married woman aged 69 at the date of the accident RM7,500 general damages for fracture of the right femur causing a 2 [1/2] inches shortening of the leg, limitation of flexion of the right knee joint and wasting of leg muscles.
Holding :
Held
, allowing the appeal: there was an error of principle in awarding identical awards to two persons where expectation of life must be different by some ten years, on the ground that the levelling factor was the expectation of the appellant in this case of working life as a cook and therefore the award of damages must be increased from RM7,500 to RM10,000.Digest :
Wong Khang Jong v Ali & Anor [1970] 1 MLJ 56 Federal Court, Kuala Lumpur (Ong Hock Thye CJ (Malaya).
598 Personal injuries -- Leg shortening and abrasions
6 [598]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and abrasions Breach of statutory duty Leg [1/6]" shortening Abrasions.Summary :
The plaintiff, a carpenter, was involved in an accident and was admitted to hospital with the following injuries: abrasions on most of the right side of his body, ie over his right forehead, right elbow, etc and a fracture at the midshaft of the tibia on left leg resulting in shortening of one-sixth of an inch. There was evidence in this case that the defendant had in fact seen the plaintiff walking in an unsteady manner about 3 ft from the edge of the road. When he first saw the plaintiff, the defendant was about 4050 yds away. He admitted that he did not slow down until the plaintiff was 1015 ft away. He swerved to the left when the plaintiff was crossing the road and was near the centre of the road.
Holding :
Held
: (1) when the possibility of danger was apparent, there was a special duty created by s 25 of the Highway Code to take precautions and the failure to take them was negligence; (2) on the question of contributory negligence, the evidence showed that the plaintiff attempted to cross the road before first ensuring that the road was clear and therefore the blame should be apportioned viz defendant [2/3] and plaintiff [1/3]; (3) general damages in this case should be classified under two headings: (i) fracture of midshaft of the left tibia resulting in shortening of one-sixth of an inch should be awarded RM3,000; (ii) the remaining injuries, ie abrasions, should be awarded RM2,100. Liability based on [2/3] against the defendant.Digest :
Chan Peng Fook v Kan Pak Lee [1974] 2 MLJ 197 High Court, Seremban (Hashim Yeop A Sani J).
599 Personal injuries -- Leg shortening and fracture
6 [599]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Abrasions 3 cm leg-shortening and compound fracture of tibia and fibula.Summary :
The plaintiff in this case sought for damages arising out of a road accident as a result of the negligence of the first defendant who was a servant of the second defendant. At the material time of the accident, the motor lorry driven by the second defendant was making a right turn into a junction leading towards a side road. The plaintiff suffered the following injuries: (i) a compound fracture at the lower end of the tibia and fibula with a lacerated wound at the site of fracture. A piece of bone protruded through the wound (4 inches long); (ii) superficial abrasions over the knees (both right and left) and over the middle three knuckles of the left hand and over the (R) and (L) shoulder regions; (iii) 3 cm shortening of the right leg. The plaintiff was a chief clerk and earned a salary of RM310 plus RM150 fixed allowance per month. He was given six months medical leave. At the time of the trial, he was 43 years old. He walked with a limp as his right leg could not support the whole body.
Holding :
Held
: general damages were assessed at RM5,000 for loss of amenities and RM20,000 for 3 cm shortening of the right leg.Digest :
Chan Kim Hee v Karam Singh & Anor [1981] 2 MLJ 273 High Court, Johore Bahru (Yusof Abdul Rashid J).
600 Personal injuries -- Leg shortening and fracture
6 [600]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Footdrop Leg shortening, fracture and footdrop Infant cyclist 50% liable General damages $15,000 at 50% liability.Summary :
The infant cyclist aged 11 collided with a motor car as a result of which he suffered the following injuries: fracture of both femur and of the right tibia and fibula, and the severance of the tibialis anterior muscle which had caused a weakness in dorsiflexion of the right foot that gave rise to a moderate degree of footdrop. There was a reduction of girth of the right thigh, weakness of the power by the right leg and a shortening of the right leg of one inch. There was also a complaint of loss of memory. The boy's father on his behalf claimed damages against the defendant.
Holding :
Held
: for pain and suffering and loss of amenities arising from the above injuries, the boy was awarded RM15,000 at 50% liability. There was no award as to loss of earning capacity as it was too remote and speculative. Agreed special damages awarded at 50% liability was RM251.Digest :
Tengku Rosli bin Tengku Abdul Hamid v Tahir bin Dahuri [1983] 2 MLJ 287 High Court, Kuantan (George J).
601 Personal injuries -- Leg shortening and fracture
6 [601]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Leg Compound fracture of left leg [1/4]" shortening Blood supply damaged.Summary :
The plaintiff was one of a team of labourers accompanying the first defendant's lorry on rounds collecting refuse. He claimed damages for personal injuries suffered in an accident which occurred when the second defendant, the driver, was reversing the lorry into a major road. The plaintiff sustained a severe compound fracture on his left leg. The evidence disclosed that the second defendant was told to stop but proceeded to reverse the lorry a second time without receiving prior signal.
Holding :
Held
: in the circumstances of the case, RM23,000 would be a fair compensation for pain and suffering and loss of amenities and RM7,000 for loss of future earnings.Digest :
Muniandy v Chairman, Petaling Jaya Town Board & Anor [1972] 1 MLJ 220 High Court, Kuala Lumpur (Abdul Hamid J).
602 Personal injuries -- Leg shortening and fracture
6 [602]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Leg injuries 1" shortening General damages awarded $28,000.Summary :
The plaintiff, a private in the Malaysian army, claimed damages against the defendants for injuries sustained by him due to a motor accident involving the second defendant's taxi (driven by the first defendant) and the plaintiff's motor cycle. The plaintiff suffered the following injuries: (i) laceration on right leg and foot; (ii) fracture of the right fibula above which was a lacerated wound 3 inches ΄ 2 inches on lower third with about 2 inches of the bone protruding out of the wound; (iii) compound comminuted fracture on mid-shaft of right tibia; and (iv) fracture of lateral condyle of right tibia. There was also 1 inch shortening of his right leg. At the time of the accident, the plaintiff received a monthly salary of RM420 and a housing allowance of RM64.
Holding :
Held
: the defendants were solely liable for negligence. The plaintiff was therefore awarded RM28,000 general damages (being RM18,000 for pain and suffering and RM10,000 as probable loss of future earnings) and RM1,300 as agreed special damages.Digest :
Mat Desa bin Salleh v Ang Hock Lee & Anor [1979] 1 MLJ 241 High Court, Alor Setar (Syed Agil Barakbah J).
603 Personal injuries -- Leg shortening and fracture
6 [603]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Loss of future earnings and loss of earning capacity Distinction Quantum Distinction between damages for loss of future earnings and loss of earning capacity Principles applicable in claim for loss of earning capacity Leg Shortening 3 cm Fractured femur, tibia and fibula etc.Summary :
The plaintiff who was a 29-year-old clerk in the Education Department, Johore, met with an accident while riding his motor scooter. He suffered the following injuries: fracture of the lower [1/3] of the right femur, the right tibia and fibula, and the right second and third metatarsal bones. There was a permanent shortening of 3 cm of the right leg, a stiffness of the right ankle and subtalar joints with an equinus or plantar-flexion deformity at the ankle and deformity in the second and third toes. As a result of the injuries, he could develop osteoarthritic changes in the right knee. He will have difficulty in negotiating steps, walking on slopes and he will not be able to squat. Liability was admitted and it was agreed that the plaintiff should receive RM26,000 as general damages and RM1,585 as special damages. The only issue before the court was what additional sum, if any, should be awarded to a plaintiff who had not suffered any actual loss of present or future earnings but nevertheless claims that there has been a diminution of his earning capacity on the open market or a loss of promotional prospects in his existing environment by reason of the residual disabilities which he has sustained.
Holding :
Held
: (1) there was no doubt that the plaintiff sustained severe injuries but a claim for loss of future earnings is an altogether different head of damages from a plaintiff's loss of earning capacity; (2) this head of damage is concerned with a plaintiff's loss of earning capacity where as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his injury. What is being compensated is the risk that the plaintiff may lose his employment in future and be at a disadvantage in getting alternative employment because of his injury.Digest :
Salim bin Dawing v Lim Kat Kang [1986] 2 MLJ 50 High Court, Johore Bahru (Shankar J).
604 Personal injuries -- Leg shortening and fracture
6 [604]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Personal injuries Leg Fracture Wound Shortening by 1 [1/2] cm.Summary :
This was an action for damages for personal injuries suffered by the plaintiff as a result of a road accident caused by the alleged negligent driving of the second defendant. The first defendant was the owner of the motor lorry driven by his servant, the second defendant. The plaintiff had an 8 cm wound over the front of the right leg. There was also a 17 cm long operation scar over the same region. There was about 2.5 cm wasting of the girth of the right calf, with the result that he walked with a definite limp. He was able to squat and rise up reasonably well but he could not run easily. There was some outward bowing of the right leg caused by the shortening of the leg by 1 [1/2] cm. There was restriction of movement in the right ankle and foot. The movement in the right ankle was only half the normal range and the main limitation was in dorsiflexion. There was no eversion and inversion at the subtalar joint was only half the range. It was very likely that osteoarthritis would develop in the ankle joint over the years.
Holding :
Held
: (1) on the facts the second defendant was entirely to blame for the accident; (2) the plaintiff should be allowed general damages at RM14,000 and special damages in the sum of RM13,450.Digest :
Liew Chee Yung v Chang Lun Yuan & Anor [1976] 2 MLJ 38 High Court, Muar (Gill CJ).
605 Personal injuries -- Leg shortening and fracture
6 [605]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Personal injuries Leg [1/2]" shortening Compound fracture of tibia and fibula.Summary :
The plaintiff claimed damages for personal injuries sustained in a road traffic accident. The judge found the plaintiff guilty of contributory negligence and placed half the blame on him. He suffered a compound fracture of the left tibia and fibula resulting in a half inch shortening of the left leg and some slight wasting in the girth of the left calf and left thigh. General damages S$5,000 as agreed. The judge awarded half that amount and half the assessed special damages: SS$340.
Digest :
Kwek How Bok v Lee Sin Kweng [1966] 1 MLJ 185 High Court, Singapore (Winslow J).
606 Personal injuries -- Leg shortening and fracture
6 [606]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Promotional prospects Personal injuries Fractured femur, tibia and fibula Multiple scars 2 [1/2]" shortening of left leg Pain and suffering Loss of earnings.Summary :
A taxi driven by the first defendant in which the plaintiff was travelling as a passenger came into collision with a lorry driven by the second defendant at a junction of a minor road and a major road. The plaintiff brought an action against both drivers claiming damages for personal injuries as a result of the road accident. He suffered a compound fracture of his femur, tibia and fibula. There was severe and multiple scarring and a 2 [1/2] inch shortening of his left leg. He had a suppurating sinus in his left leg for a considerable length of time and there was permanent limitation of movement of the left leg. He was a junior officer in the Fisheries Department in Sarawak and as a result of his injuries could not continue as a field officer and was transferred and is now a clerical officer.
Holding :
Held
: there should be an award of S$27,000 general damages, S$20,000 for pain and suffering and loss of amenities and S$7,000 for loss of future earnings, and S$900 as agreed special damages.Digest :
Ngui Kee Siong v Guan Soo Swee & Anor [1970] 2 MLJ 48 High Court, Singapore (Winslow J).
607 Personal injuries -- Leg shortening and fracture
6 [607]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and fracture Pubic injury Personal injuries sustained in road accident Assessment of damages Leg Shortening Pubic rami Urinary bladder.Summary :
Male, aged 21, a mason, part-time goldsmith earning a total of S$450 a month, (S$260 a month as a mason and S$190 a month as a part-time goldsmith). Compound fracture of left tibia and fibula causing a 1 inch shortening of leg. There was a limitation in ankle movement of 30%. Movement in ankle should improve a little. There was a fracture of superior pubic rami and left inferior pubic ramus and a contusion of bladder and extra-peritoneal haemorrhage. Fractures healed without trouble. There was difficulty in passing urine which had to be treated by catheterization and dilatation of his urethra. On 30 April 1964 he was passing urine well. He would require in the future periodic dilatation at least once a year for five or six years. The judge assessed the loss of future earnings at the rate of S$50 a month. General damages: S$20,000; special damages: S$2,821.
Digest :
Wong Fatt Heng v Gammon Malaya Ltd [1965] 2 MLJ viii; [1965] 2 MLJ 256 High Court, Singapore (Choor Singh J).
608 Personal injuries -- Leg shortening and injuries
6 [608]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and injuries Duty to mitigate loss Loss of wife's income Special damages Leg [1/2]" shortening Knee flexion limited to 90‘.Summary :
Plaintiff, a male quarry conductor, aged 59, claimed general damages and also special damages for loss of earnings, special food, travelling expenses incurred by the plaintiff's wife in visiting him daily at the hospital, loss of wife's income and travelling expenses for himself. He suffered two disabilities: he walked with a limp and he was unable to sit on his haunches. His left leg was shortened by [1/2] inch and the flexion of his left knee was limited to about 90‘. The judge awarded RM26,916 damages (including RM12,600 for the loss of prospective earnings and RM5,000 for the pain and suffering).
Digest :
Wong Kong v Yee Hup Transport Co Ltd & Ors [1966] 2 MLJ 234 High Court, Ipoh (MacIntyre J).
609 Personal injuries -- Leg shortening and injuries
6 [609]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Leg shortening and injuries Leg injuries and 2 [1/2]" shortening Quantum assessed.Summary :
The plaintiff, a labourer, sustained the following injuries when his motor cycle collided with a car driven by the defendant: (i) 2 [1/2] inches shortening of the right lower limb; and (ii) deformation of the knee joint restricted to about 30‘ and fixed in an extended position.
Holding :
Held
: (1) the evidence showed that the defendant, when she was overtaking cyclists or trishaws, swerved into the path of the plaintiff's motorcycle and collided into the motor cycle when the plaintiff was riding on the correct side of the road, and in doing so, was negligent and liable in damages to the plaintiff; (2) general damages in the sum of RM27,000 (RM6,000 for loss of future earnings and RM21,000 for pain and suffering and loss of amenities) was awarded to the plaintiff.Digest :
Abdul Wahab bin Kachi Mydin v Gan Ah Hoe [1978] 1 MLJ 186 High Court, Penang (Arulanandom J).
610 Personal injuries -- Loss of future earnings
6 [610]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings No documentary evidence of previous earnings Court may still accept oral evidenceSummary :
This was a claim for damage suffered as a result of a road accident between the motorcycle of the plaintiff and the second defendant's van. The first defendant was the driver, employed by the second defendant.
Holding :
Held:
(1) the evidence indicated that the van had suddenly emerged from a junction without stopping and that the plaintiff had not been able to brake on time to avoid the collision. The defendants were therefore 100% liable; (2) although the plaintiff was unable to give any documentary evidence as to his earnings prior to the accident, the court accepted him as a truthful witness and accepted that the alleged earning of RM35 per day was a reasonable amount. At 26 days per month, this came up to RM910 per month; (3) the court would only deduct living expenses which were admitted or proved from the award for loss of future earnings. Since the plaintiff had not been questioned about such expenses, the court was not willing to make any deductions to that end; (4) since the plaintiff was 27 at the time of the accident, he was entitled to 16 years purchase; (5) a pre-trial award of RM65,150, a post-trial award of RM75,970 and interest was also awarded.Digest :
Kamaruddin bin Ramli v Nanivagnan a/l Subramaniam Civil Suit No 23-68 of 1994High Court, Johore Bahru (Mohd Ghazali J).
611 Personal injuries -- Loss of future earnings
6 [611]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Residual brain damage Cost of artificial armSummary :
The plaintiff, who was the driver of a motor cycle, claimed damages from the defendant for injuries suffered in a motor accident which he alleged was caused by the negligence of the defendant who was driving a motor car. The injuries suffered were cerebral concussion, a lacerated wound over the frontal aspect of the scalp, total loss of the left arm and residual brain damages associated with permanent intellectual and mental deficit. The plaintiff alleged that the defendant's car came from the opposite directions of the road at high speed, encroached onto his side of the road and collided into his motor cycle. The defence was that the plaintiff encroached onto his side of the road when he (the plaintiff) was overtaking three motor cycles in front of him. The court went ahead to decide on the damages for loss of future earnings, residual brain damage and the cost of an artificial left arm in the event that the defendant was found liable.
Holding :
Held,
dismissing the plaintiff's claim: (1) the estimated earning of a labourer in the position of the plaintiff was RM600 per month. As he was 22 at the time of the accident and had not claimed pre-trial loss, the years of purchase had to be taken to be 16 from the date of the accident by virtue of s 28A(2)(d)(i) of the Civil Law Act 1956. The award for loss of earnings should therefore be assessed at RM600 x 12 x 16 = RM115,200; (2) based on the case of Chan Sau Chuan v Choi Kong Chaw & Anor [1991] CLJ 297, the award for residual brain damages should be RM100,000; (3) the maximum sum of RM60,000 submitted by counsel for an artificial limb was reasonable and should be allowed; (4) having considered the evidence of both sides, the court accepted the defendant's version as being more probable and found the plaintiff wholly to be blamed for the accident.Digest :
Kamarul Dzaman bin Shalan v Murugayah s/o Duraisamy Guaman Sivil No 23-59-1992High Court, Ipoh (Kang Hwee Gee J).
612 Personal injuries -- Loss of arm with 8-inch stump remaining
6 [612]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of arm with 8-inch stump remaining RM35,000 award as general damages Principles in assessing damagesSummary :
The plaintiff, a spinster aged 22 years, was earning between RM85 to RM90 per month as general labourer in the defendants' company. She lost her arm (and what was left of the arm was an 8-inch stump) as a result of an accident, and claimed damages for personal injuries and loss suffered and caused by the negligence and/or breach of statutory duty on the part of the defendants in failing to provide a safe system of work. Special damages was agreed at RM7,160.
Holding :
Held
: (1) the award made should be in line with the trend or pattern of awards in reasonably comparable cases. It was necessary to examine the facts of each of these cases and compare them with the facts of the case under consideration, bearing in mind the distinguishing factors; (2) careful consideration had been given to the age of the plaintiff, the pain and suffering, the loss of future earnings, and disadvantages arising from disablement such as loss of amenities, enjoyment of life and embarrassment which a woman of her age without an arm would suffer; (3) the plaintiff should be awarded the sum of RM42,160 being RM7,160 special damages and RM35,000 (including RM15,000 for loss of future earnings) as general damages.Digest :
Lock Ngan Loi v United Plywood and Sawmill Ltd [1970] 4 MC 109 High Court, Kuala Lumpur (Abdul Hamid J).
613 Personal injuries -- Loss of earning capacity
6 [613]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Appeal against trial judge's awards on loss of earning capacity and damages for skull injury Loss of earning capacity need not be specifically pleaded Not necessary to adduce evidence of loss of earning capacity when parties agreed on sumSummary :
In this motor accident claim, the appellant/defendant appealed against the decision of the trial judge on: (1) the assessment of loss of earning capacity; and (b) general damages in respect of the injury to the skull. The appellant contended that the claim for loss of earning was not pleaded by the respondent and that there was no evidence adduced in support of the claim. As to the second ground of the appeal, the appellant claimed that the trial judge was wrong to have based his assessment upon the case of Wan Zailani bin Hussain v Ang Eng Tan & Anor [1981] 1 CLJ 130.
Holding :
Held
, dismissing the first ground of appeal and allowing the second ground: (1) loss of earning capacity is an item of general damages which need not be specifically pleaded; (2) no evidence of earnings was adduced and as earnings was agreed between the parties to be at RM50 x 16 years, proof of such is being dispensed with; (3) the award of the trial judge in respect of the skull injury is set aside. A sum of RM30,000 would be fair and reasonable compensation.Digest :
Muniandy a/l Thangasamy & Anor v Kok Lin Lin Rayuan Sivil No 12-59-90 High Court, Ipoh (Chin Fook Yen JC).
614 Personal injuries -- Loss of earning capacity
6 [614]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Claim for loss of future earnings Part-time job Security guard Lump sum payment for loss of earning capacity ordered in lieu of loss of future earningsSummary :
The respondent claimed damages for personal injury caused by the appellant. The trial judge had assessed the loss of future earnings and special damages for loss of pre-trial earnings in respect of the respondent's part-time employment as a security guard. The appellant appealed against this.
Holding :
Held
, allowing the appeal partially: this was an unusual case in that it was not a claim for loss of future earnings in respect of the respondent's full time employment. He was still in his full time job and had suffered no loss of earnings in respect of that job. Bearing the following considerations in mind that damages were to be assessed for a part-time job, that the respondent could not work at his part-time job, that the respondent had a duty to mitigate his loss this was not a case for damages to be assessed for loss of future earnings but one for which there should be a lump sum payment for loss of earning capacity.Digest :
Tham Sek Khow v Chow Khai Hong District Court Appeal No 30 of 1987 High Court, Singapore (TS Sinnathuray J).
615 Personal injuries -- Loss of earning capacity
6 [615]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Criteria to be satisfied in claiming for loss of earning capacity Restriction against taking into account prospect of future increased earnings Civil Law Act 1956, s 28A(2)(c)(ii)Digest :
Chew Sheong Yoke v Lawrence Su Chu Seng & Anor Suit No K 100 High Court, Sabah and Sarawak (Ian Chin J).
See
DAMAGES (DEATH OR PERSONAL INJURIES), para 984.616 Personal injuries -- Loss of earning capacity
6 [616]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Interest on damages Interference by appellate court, principles Principles upon which appellate court will interfere with award of trial judge Loss of earning capacity Interest on damages Rules of the High Court in Borneo 1963, O 40 r 11(2) Civil Law Act 1956, s 28A.Summary :
This was an appeal from the decision of the High Court in which judgment was given for the respondent for damages for injuries sustained in an accident in which the motor cycle ridden by the respondent collided with the motor cycle ridden by the appellant.
Holding :
Held
: (1) it would be wrong for the appellate court which had not seen or heard the witnesses to substitute its own finding of fact for that of the learned trial judge; (2) on an appeal against the damages awarded, the appellant had to convince the appellate court that the learned trial judge had acted on a wrong principle of law or had misapprehended the facts or had for other reasons made a wholly erroneous estimate of the damage suffered; (3) the learned trial judge should have given damages for loss of earning capacity rather than for loss of future earnings, but in the absence of definite evidence, the court had to arrive at some fair figure. In the circumstances, the damages for loss of earning capacity should be RM42,660 less income tax; (4) the awards for pain and suffering and for loss of amenities should not be interfered with; (5) interest was payable on the damages under O 40 r 11(1) of the Rules of the High Court (Borneo) 1963.Digest :
Rasidin bin Partorjo v Frederick Kiai [1976] 2 MLJ 214 Federal Court, Kuching (Suffian LP, Lee Hun Hoe CJ (Borneo).
617 Personal injuries -- Loss of earning capacity
6 [617]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Interference by appellate court Loss of future earnings Loss of earning capacity Interference by appeal court.Summary :
In this case, the learned trial judge had awarded RM16,000 to the respondent for loss of future earnings arising from injuries sustained by him in a road accident. The appellant appealed on the ground that what the learned trial judge held to be 'loss of future earnings' should really be 'loss of earning capacity.'
Holding :
Held
, dismissing the appeal: (1) it was plain in this case that the learned trial judge had found that there was satisfactory evidence of loss of future earnings; (2) in this case, the appellate court had no reason to interfere with the award of damages made by the trial judge.Digest :
Tuck Seng Loong Transport Co Sdn Bhd v Latchaman Singh [1979] 1 MLJ 82 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).
618 Personal injuries -- Loss of earning capacity
6 [618]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Method of calculation Direct estimation of loss instead of multiplier and multiplicandSummary :
This was a claim by a 29-year-old plaintiff seeking damages for injuries which he sustained arising from a road accident on 30 October 1990. The plaintiff was a front-seat passenger in a lorry driven by the defendant which collided with a truck. The plaintiff, an odd-job worker employed by the defendant, contended that the accident resulted from the defendant falling asleep at the wheel. He suffered a pelvic fracture, secondary osteoarthritis, scars and was unable to run or carry heavy loads or to sit and drive any vehicle.
Holding :
Held
, awarding the plaintiff general damages totalling S$26,000: (1) the defendant was negligent in not keeping a proper lookout; (2) the plaintiff was able to work but as a result of his injuries, he would not be able to operate a forklift or to lift heavy objects. There had undoubtedly been some loss of earning capacity because of the injuries sustained; (3) earning capacity was concerned with potential earning power of the claimant, not what he actually earned in the past. So long as an accident had prevented a claimant from earning what he potentially could have, there had been a loss of earning capacity; (4) although loss of earning capacity might be calculated by the multiplier and multiplicand method, the courts had generally recognized that the method might be too speculative and a direct estimation of the loss may be necessary; (5) the plaintiff had contended that the multiplicand was calculable but it was not shown on the evidence that he would have been able to obtain the salary contended for, namely S$1,700 per month. An award of S$10,000 appeared to be a fair amount; (6) the plaintiff would have about 21 years of working life. Taking a normal working life span with all its contingencies, the appropriate multiplier would be 16. The total amount awarded for future medical fees was S$8,000 calculated on a multiplier of 16; (7) S$8,000 was awarded for the pelvic fracture.Digest :
Branches v Anbalagan Suit No 1342 of 1993 High Court, Singapore (Lai Siu Chiu J).
619 Personal injuries -- Loss of earning capacity
6 [619]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Plaintiff had not worked before accident Whether pre-trial loss of earnings possible Method of calculating post-trial loss of earningsDigest :
Emran bin Haji Abdul Rahman v Keasberry Civil Appeal No 5 of 1995 Court of Appeal, Brunei (Fuad (President).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 452.620 Personal injuries -- Loss of earning capacity
6 [620]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Whether award precluded by award of loss of future earningsDigest :
Neo Kim Seng v Clough Petrosea Pte Ltd [1996] 3 SLR 522 High Court, Singapore (Judith Prakash J).
See
DAMAGES (PERSONAL INJURY OR DEATH), para 979.621 Personal injuries -- Loss of earning capacity
6 [621]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earning capacity Whether claimable Whether plaintiff eligible for award in respect of such loss Plaintiff not earning anything at time of accident Civil Law Act 1956, s 28A(2)(c)(i) & (ii)Summary :
The defendant had earlier been awarded general damages by the High Court for loss of earning capacity in a claim brought by him against the appellant arising from a road accident. The defendant was 12 years old at the time of the accident and was a student not earning anything. The appellant appealed to the Supreme Court against the award for loss of earning capacity. It was contended for the appellant that the defendant was not entitled to the award under s 28A(2)(c)(i) and (ii) of the Civil Law Act 1956 as he was not receiving earnings by his own labour nor was he engaged in gainful activity.
Holding :
Held
, allowing the appeal: (1) having regard to s 28A(2)(c), it was an essential prerequisite that in awarding damages for loss of future earnings or loss of earning capacity, there had to be proof that the claimant was receiving earnings by his own labour or other gainful activity before he was injured. The purposive and literal rules to construction of statutes should be adopted so that the literal meaning of an Act would be followed where that meaning was in accordance with the legislative purpose; (2) in the light of s 28A(2)(c), it was clear that the continued validity of common law concept governing the future earnings of injured people in contrast to amended provisions in accident cases such as the present were inconsistent with each other and could not co-exist. Accordingly, as the defendant was not entitled to any compensation either for loss of earnings or earning capacity as he was not earning anything at the material time of the accident, the award for loss of earning capacity was quashed by the Supreme Court.Digest :
Tan Kim Chuan & Anor v Chandu Nair [1991] 2 MLJ 42 Supreme Court, Malaysia (Abdul Hamid Omar LP, Gunn Chit Tuan and Jemuri Serjan SCJJ).
622 Personal injuries -- Loss of earnings
6 [622]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earnings Living expenses to be deducted 'Living expenses', meaning of Expenses reasonably incurred in earning a living Civil Law Act 1956, s 28A(1)(c)Summary :
The first plaintiff, who was riding a motor cycle with the second plaintiff as pillion rider, met with an accident on 18 October 1984 when his motor cycle was involved in a collision with a motor car. The defendants were insurers of the motor car, the driver of which was deceased. For the purposes of computing loss of earnings to be awarded to the plaintiffs, the meaning of the words 'living expenses' under s 28A(1)(c) of the Civil Law Act 1956, fell to be construed.
Holding :
Held
, finding the driver of the motor car wholly liable in negligence: (1) living expenses to be deducted under s 28A(1)(c) of the Civil Law Act 1956 were not to be taken to be the whole of the expenses of living but only expenses reasonably incurred in earning a living, such as the extra cost of having meals and refreshments while at work which cost would not have been ordinarily incurred if one stayed at home; (2) to hold otherwise would lead to absurd and unjust consequences which could not have been the Parliament's intention; (3) accordingly the first plaintiff's deductible living expenses were RM200 while the second plaintiff's were RM100 per month; (4) and post-trial partial loss of future earnings for 38 months at RM500 per month; (5) post-trial future loss of earnings at the same rate for 67[1/2] months, and the cost of domestic help for a recuperation period of 12 months at RM200 per month. There was no award for nursing care; (6) as to general damages, the court allowed RM2,500 and RM4,000 to the first and second plaintiffs respectively for the scars and RM30,000 and RM25,000 respectively for the leg injury; (7) the first plaintiff's income being RM1,000 per month, pre-trial total loss of earnings was awarded for 60 months at RM800 per month; pre-trial partial loss of earnings for 22 months at RM600 per month;as the second plaintiff was unable to work as a result of the accident and his income being RM500 per month, pre-trial total loss of earnings was awarded for 82[1/2] months at RM400 per month;in respect of both plaintiffs, interest on general damages at the rate of 8%pa from the date of service of the writ to the date of judgment, and interest on special damages at 4%pa from the date of the accident to the date of judgment was allowed. No interest was allowed for loss of future earnings.Digest :
Tey Chan & Anor v South East Asia Insurance Bhd [1993] 3 MLJ 760 High Court, Muar (Richard Talalla J).
623 Personal injuries -- Loss of earnings
6 [623]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earnings Plaintiff injured in road accident Loss of earnings as director of family companySummary :
The plaintiff was injured in a road accident. Liability was apportioned between the first and the second defendant (see [1988] 3 MLJ 137). The trial judge awarded the plaintiff damages for loss of earnings. The plaintiff was at the material time a director of two family companies and was drawing a salary from them. The first defendant appealed against liability and the award of damages for loss of earnings. The second defendant appealed only against the award.
Holding :
Held
, dismissing the appeals: (1) the Court of Appeal was satisfied that the trial judge had correctly evaluated the evidence when he held the first defendant one-third liable for the accident; (2) there was no evidence that the salaries paid to the plaintiff as a director of his family companies were fictitious or bore no relevance to the value of the services rendered. The trial judge was correct to have accepted that the salaries paid were genuine and to fix the plaintiff's loss by reference to his salary. The appeals were accordingly dismissed.Digest :
Lim Hin Hock v Ong Jin Choon & Anor Civil Appeal Nos 116 & 117 of 1987 Court of Appeal, Singapore (Yong Pung How CJ).
624 Personal injuries -- Loss of earnings
6 [624]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of earnings Pre-trial and post-trial loss Appropriate multiplicand and multiplierSummary :
The respondent, formerly in the employ of the appellants, was injured in an accident caused by the negligence of a fellow employee while working in the Orchard MRT tunnel site. The respondent claimed for loss of earnings on the basis that his back injury had rendered him unable to do heavy manual work and that it affected his job opportunities. The appellants contended that the respondent's claim for pre-trial loss of earnings was not properly pleaded as no claim for pre-trial loss of earnings was made in the statement of claim filed by the respondent. This was only disclosed subsequently in the 'voluntary' further and better particulars filed by the respondent's solicitors. The trial judge had rejected this contention and allowed the voluntary further and better particulars to stand as pleadings of special damages for pre-trial loss of earnings and awarded the respondent the damages sought, inter alia, (i) a sum of S$315,862.12 for pre-trial loss of earnings; (ii) a sum of S$160,394.85 for post-trial loss of earnings; and (iii) a sum of S$2,777.40 for the costs of future house repair. The appellants appealed against the awards.
Holding :
Held
, allowing the appeal: (1) the trial judge was not in error in allowing the voluntary further and better particulars to stand as pleadings of special damages. These particulars were truly pleadings of special damages for pre-trial loss of earnings, and the respondent's solicitors should have sought leave of the court prior to filing and delivery thereof, to amend the statement of claim, instead of filing and delivering them in the guise of voluntary further and better particulars. Nevertheless, in making the ruling at the trial that the particulars were part of a statement of claim, the trial judge was in effect allowing the respondent to amend the statement of claim by treating the particulars as pleadings of special damages. Although the court strongly disapproved of this manner of slipping an amendment to the pleadings in the guise of further and better particulars, it would be unduly technical at the appellate stage to disallow the amendment and rule that special damages for pre-trial loss of earnings had not been pleaded when the appellants had ample notice thereof and had not thereby been prejudiced in any way in the preparation of their case; (2) it was plain that because of the respondent's back injury he could not carry or move anything heavy and could not perform any work involving any exertion of some great physical strength. The sort of work he was engaged in doing prior to the accident was that of a leading miner and a 'shift boss' in tunnelling work, ie a combination of both types of work. That work he could no longer do; (3) the respondent himself said he could earn £850 to £900 per week. The court, therefore, proposed to take the mean of these two figures, ie £875 per week. It was then noted that as a miner the respondent could work 48 weeks a year, and before the court there was no dispute or challenge on this point. On the basis that he worked 48 weeks a year, the total amount he could have earned during the six years before the trial would be £252,000. From this amount should be deducted the total amount of the salaries he earned during this period and income tax at the rate of 25%. The documentary evidence adduced showed that the respondent earned approximately £31,545.13 pa. On this computation, the respondent's pre-trial loss of earnings would be £47,046.90 which at the rate of exchange prevailing at the date of judgment would amount to S$145,186.70; (4) as regards the post-trial loss, it should be computed also on the same basis applying an appropriate multiplier. The trial judge has used a multiplier of three which the court agreed with; (5) in computing the pre-trial loss of earnings, the multiplicand used by the trial judge at £1,000 per week was too high;the award of S$2,777.40 for the cost of future house repairs was disallowed for lack of evidence. There was no evidence to show the type of house repairs the respondent used to do or could do, the regularity of such house repairs and the necessity for such work to be carried out. Nor was any evidence led to show that contractors had in fact been hired to carry out the house repairs over the six years prior to the trial and that charges had been paid to the contractors in respect of such work. There was only the bare assertion of the respondent and his wife without any other evidence in support that these additional charges were necessitated by his injury.Digest :
Bocotra Construction Pte Ltd v Thorkildsen [1994] 2 SLR 345 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).
625 Personal injuries -- Loss of future earnings
6 [625]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings 20-year-old plaintiff Multiplier of 16Summary :
The plaintiff's claim against the defendant arose out of a motor accident between the plaintiff's and the defendants' respective motorbike and car. The defendants only contested the plaintiff's claim for future loss of earnings. The plaintiff was unable to give evidence on his own behalf, but a time-sheet was produced which indicated that the plaintiff was at the time working as a casual worker for a company in Pasir Gudang. No evidence of tax payments or a contract of employment was produced.
Holding :
Held
: (1) based on the evidence before the court, there had been no negligence on the part of the plaintiff at all Ð the first defendant was 100% liable; (2) since the plaintiff was 20 years old, the multiplier applicable was 16. After deducting his living expenses as suggested by the plaintiff's counsel and taxes that he would have to pay, damages were awarded as claimed by the plaintiff based on that multiplier.Digest :
Moh Chee Seng v Abd Hamid bin Abd Rahman & Anor Suit No 23-209 of 1994 High Court, Johore Bahru (Mohd Ghazali J).
626 Personal injuries -- Loss of future earnings
6 [626]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Assessment Lump sum payment Cause of action arose in 1982 Whether to consider prospective increments Whether annuity table must be used Whether to take into account possibility that injured party would cease employment after marriage Civil Law Act 1956, s 28A(2)(c)(ii)Digest :
Tan Cheong Poh & Anor v Teoh Ah Keow [1995] 3 MLJ 89 Court of Appeal, Kuala Lumpur (VC George, Abu Mansor JJCA and KC Vohrah J).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 421.627 Personal injuries -- Loss of future earnings
6 [627]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Injury to hand Dental surgeon unable to work as beforeSummary :
This was an action for damages for injuries suffered by the plaintiff on account of a motor accident. The plaintiff was a passenger in a motor vehicle which was being driven by the defendant when it collided into parked motor lorry. The defendant appealed against the whole decision of the assistant registrar who awarded the plaintiff a total sum of S$148,899. The plaintiff, who was aged 39 on the date of assessment,was a dental surgeon by occupation. He practised in partnership with two others in a dental surgery. In his dental practice, 1/3 of his work involved operation, 1/3 bridging and 1/3 general dentistry. The accident had caused extensive damage to his hands. The evidence was quite clear that his capacity to work had been reduced. The difference in the net profit which the firm earned in 1985 and 1986 was the sum of S$20,000. It was explained that the net profit of the firm did not drop significantly because the other partners worked harder and did not go on leave. Moreover, from February 1989, the partners would be having a new arrangement as income division would be tied up with earning capacity. The plaintiff's net income after tax was therefore S$74,275 which worked out to be S$7,185 per month and approximately S$230 a day.
Holding :
Held
, allowed the appeal in part: (1) even assuming that it was the plaintiff who on his own volition did not wish to insist on his rights and draw his share of the income from the partnership, the court did not think that that should preclude the plaintiff from claiming the income loss as damages from the defendant; (2) a plaintiff who had been paid his wages should not be allowed to claim his wages all over again against a defendant tortfeasor. However, there was no rule that a defendant tortfeasor was entitled to insist that a plaintiff exercised his contractual rights in order to reduce the damages which the defendant tortfeasor was obliged to pay under general law; (3) he would in the normal course have another 21 years of working life left if not more; (4) but the court here reduced the amount for pain and suffering from S$15,000 to S$12,000; (5) a multiplier of nine years which the assistant registrar applied was also in the court's view fair and reasonable considering that the plaintiff was only 39 years of age at the date of the assessment;as no ground was shown that the sums awarded for the loss of future earnings were wrong, the court maintained the awards of the assistant registrar;it was envisaged that the plaintiff would have to go for an operation in five years' time which at present costs S$3,000; the assistant registrar awarded a sum of S$6,000 to cover cost of operation and antecedent pain. Even taking into account inflation and rising costs and the antecedent pain, the court felt that doubling the estimate given by the medical expert witness did appear excessive; the sum of S$4,000 should be fair and adequate as payment would be made in advance.Digest :
Khoo Ih Chu v Jeremy Chong Hoe Siong [1990] 1 MLJ 1 High Court, Singapore (Chao Hick Tin JC).
628 Personal injuries -- Loss of future earnings
6 [628]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Lack of documentary evidence Award may be given if court accepted other evidence given on behalf of plaintiff Plaintiff's employer contravened Employees Provident Fund Act 1991 Omission did not render plaintiff's employment illegal for the purposes of the suitSummary :
The plaintiff's claim against the defendant arose out of a motor accident between the plaintiff and the defendant's respective motorbike and car. The parties had agreed on the issue of liability; the court was asked to decide only on the question of the plaintiff's future loss of earnings. The plaintiff was unable to testify in court, but counsel called a witness (SP2), the manager of Tig Boilers, to give evidence that the plaintiff had been working in his company for three weeks as a 'casual worker' at the time of the accident. The only written evidence of the kind of work he had been doing came in the form of a 'time-sheet'.
Holding :
Held
: (1) SP2 had personal knowledge of the contents of the time-sheet and therefore was competent to give evidence with respect to the document Ð his evidence was therefore not hearsay; (2) the fact that Tig Boilers had contravened s 41(1) of the Akta Kumpulan Wang Simpanan Kerja did not affect the plaintiff's claim at all as the responsibility for that lay on the employer not the plaintiff; (3) the fact that the plaintiff did not give evidence at the time of the trial also did not affect the plaintiff's claim because the court found SP2 an honest and reliable witness. For the same reason the lack of complete documentary evidence was also not a problem; (4) based on the evidence that the plaintiff was an hourly-rated worker and that he was only able to work when Tig Boilers itself had a contract, his loss of earnings per month could be calculated as follows: (RM4,25 ΄ 8 hours ΄ 1.78 ΄ 26 days) for normal working hours and (RM6.38 ΄ 4 hour ΄ 1.78 ΄ 26 days) for overtime, or RM2,754.59 monthly, and RM33,055.08 yearly; (5) deduction for expenses was calculated to amount to RM260.00 and income tax at RM220.13 per month; (6) On the basis of 100% liability, the plaintiff's losses were calculated at RM109,174,08 for pre-trial losses and (RM2,274.46 ΄ 144 months) for post-trial losses.Digest :
Mohd Ali bin Habak v Lee Kee Kian Suit No 23-297 of 1993 High Court, Johore Bahru (Mohd Ghazali J).
629 Personal injuries -- Loss of future earnings
6 [629]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Loss of earning capacity Pain and sufferingSummary :
The first plaintiff was injured as result of an industrial accident at his place of work. The first plaintiff's right hand was crushed by a plastic injection moulding machine which he was operating. A protective gate guard meant to prevent such an accident opened while the mould was closed and this was found to be the cause of the accident. As a result of the accident the first plaintiff's right index, middle and ring fingers had to be amputated and his last finger became deformed and stiff. His right hand took on the shape of a lobster claw and was very unsightly. As the first plaintiff was only 20 years old at the time of the accident he sued his employers (the defendants) for damages, through the second plaintiff, his father and next friend.
Holding :
Held
, allowing the claim: (1) there was no contributory negligence on the part of the first plaintiff. If there was any fault on the part of the first plaintiff it was an inadvertent act and that could not amount to contributory negligence; (2) under s 24 of the Factories Act (Cap 104), an employer had a duty to provide a safe working environment by maintaining the safeguards and fencing for its machinery. This duty was absolute in the sense that once it was proved that the safeguards and machinery were not maintained or kept in position as required, the plaintiff need not prove any lack of care on the part of the factory owner; (3) the fact that the mounds closed while the gate guard was open was, in view of the intention behind the design of its gate guard, sufficient to fix liability on the defendants for failing to maintain the safeguard and failing to maintain the machinery in order to prevent any breakdown which was likely to cause death or bodily injury to any person. The defendants were therefore wholly to blame for the first plaintiff's injuries; (4) the first plaintiff was awarded S$35,000 for pain and suffering; (5) at the time of trial, the first plaintiff's basic salary was S$836. When he resumed work after being discharged from hospital, he did so at the same salary he was earning when he was injured. No compensation could, therefore, be had under the head of loss of future earnings; (6) the first plaintiff was still employed by the defendants as a weighing assistant, a job he could perform despite his handicap. It had to, however, be recognized that there was a real risk that the vicissitudes of time would at some point during his long remaining working life compel him to leave the defendants' employ. When that happened, since his handicap was permanent, he would have difficulty finding a job that would pay him as well as if he could have complete use of his right hand. He had a trade certificate from the VITB in metal machining which was virtually useless to him. Moreover some allowance would have to be made for the effect of his injury upon his chances of advancement even in the defendants' employ. The award for loss of earning capacity was therefore fixed at S$55,000 without interest.Digest :
Araveanthan & Anor v Nippon Pigment (S) Pte Ltd [1992] 1 SLR 545 High Court, Singapore (Yong Pung How CJ).
630 Personal injuries -- Loss of future earnings
6 [630]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Loss of earning capacity Pre-trial loss of earningsSummary :
The first plaintiff was riding a motor cycle with the second plaintiff as pillion rider along Bedok Reservoir Road. When they arrived at a traffic light junction they were collided into by a motor lorry driven by the defendant. By agreement, liability for the accident was apportioned as to 85% on the part of the defendant and 15% on the part of the first plaintiff. Agreement on the quantum of the first plaintiff's claim was also arrived at. The matter then proceeded to assessment of the second plaintiff's claim. The assistant registrar assessed the second plaintiff's claim on full liability as follows: (1) general damages Ð $32,500 as agreed; (2) special damages Ð $3,500 as agreed; (3) future medical expenses Ð $10,000 as agreed; (4) pre-trial loss of earnings at ($1,650Ð$1,450) + ($750Ð$400) for 15 months = $8,250; (5) future loss of earnings at $800 ΄ 12 ΄ 15 = $144,000; (6) loss of earning capacity at $20,000. The second plaintiff appealed against the assistant registrar's assessment on loss of earning capacity. The defendant cross-appealed against the award for pre-trial loss of earnings, the assessment on future loss of earnings and the award for loss of earning capacity. The second plaintiff was 25 years old at the date of the accident and 28 years old at the date of the hearing. His main injury was an avulsion fracture of the lower anterior left fibia, ie the left ankle. After the accident, the second plaintiff was employed as a lorry crane driver. However, so as to avoid strain on his injured ankle, he was transferred to a lighter job in packing cargo.
Holding :
Held
: (1) the second plaintiff suffered no loss of earnings due to his transfer to lighter work in March 1995 to the date of assessment before the assistant registrar. The award of the assistant registrar for pre-trial loss of earnings was based on the difference between the pay, allowance and overtime earnings of another lorry crane driver and that of the second plaintiff for the same period. This overlooked the fact that the other driver had joined the company in 1989 and thus had three annual increments ahead of the second plaintiff. Accordingly, the award of $8,250 for pre-trial loss of earnings was set aside; (2) it was accepted that the second plaintiff's transfer to lighter work was because of his injury and that but for the accident he would have been able to drive lorry cranes. It was assessed that his loss in basic pay and allowance was $400 a month. His loss of overtime earnings worked out at $161 per month, this was rounded off to $175. The total loss was ($400 + $175) ΄12 ΄ 15 = $103,500. This amount was therefore awarded for loss of future earnings; (3) there was no credible evidence that if the second plaintiff lost his present job he would be at a disadvantage in obtaining a similar job and with the same remuneration. Therefore, the award for loss of earning capacity was set aside, his loss due to his transfer to his lighter work having been compensated for by the award for future loss of earnings.Digest :
Suriaty bte Mohamed Sabit & Anor v Ng Soon Sai Suit No 2304 of 1993 High Court, Singapore (Goh Joon Seng J).
631 Personal injuries -- Loss of future earnings
6 [631]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Loss of earning capacity Pre-trial loss of earningsSummary :
This action arose out of an accident in October 1993 when the plaintiff was hit by a car driven by the defendant and suffered injuries. The defendant admitted liability for the accident. The plaintiff's claim for pain and suffering and loss of amenities, estimated cost of future operations and special damages were also agreed. What had not been agreed was the plaintiff's claim for past loss of earnings, future loss of earnings and/or earning capacity. It was common ground that the injuries sustained by the plaintiff were: (a) an open fracture of lower third of the right tibia and fibula; and (b) a deep laceration measuring 15 cm over the right heel. The plaintiff was a fishmonger and at the time of the accident he operated a fresh seafood stall in addition to supplying fresh prawns on a contract basis to a restaurant. The plaintiff was unable to work for some 22 months after the accident. He could now resume work as a fishmonger but he would need the assistance of helpers where the objects he has to carry weigh more than 2 kg.
Holding :
Held
: (1) it is for the plaintiff to prove his case. If the plaintiff alleges he has an income loss of x dollars a month as a result of the accident, the burden is on him to prove that loss on a balance of probabilities. The only evidence the plaintiff relied on in this case was his own evidence. On the evidence and in the context of this case, the notice of tax assessment constituted the only independent and reliable evidence of the plaintiff's monthly loss of income. On the basis of these notices, the monthly loss during the period of incapacity was assessed as S$700 a month. The period of 22 months was accepted as the time when the plaintiff could reasonably be out of work; (2) the plaintiff's claim for loss of future earnings was in effect for the costs of the assistance the plaintiff claimed he would need to be able to continue his work as a fishmonger. It was accepted that the cost would be S$570 a month. The next issue was the period over which this sum had to be paid. This is commonly known as the multiplier and in reality is tied in to the period the plaintiff is expected to be able to continue working as a fishmonger. The plaintiff was aged 56 in 1995. It is common ground that even if he had not suffered these injuries, the plaintiff, as he advanced in years, would need help to carry heavy objects. In assessing the multiplier, this has to be taken into account. In the result, on the basis of the evidence and taking account of those factors usually considered in working out the multiplier in a claim for loss of future earnings such as the vicissitudes of life, the appropriate multiplier was assessed to be three years; (3) on the evidence, there was no basis for an additional claim for loss of earning capacity and no award was made in respect of this head of claim; (4) judgment was given for the plaintiff in the following sums: (a) pain and suffering and loss of amenities Ð S$35,000; (b) cost of future operations Ð S$4,000; (c) special damages Ð S$1,138.23; (d) pre-trial loss of earnings based on a loss of income of S$700 a month for 22 months Ð S$15,400; (e) cost of helpers based on a multiplicand of S$570 a month and a multiplier of three years Ð S$20,520.Digest :
Tan Chai Huat v Chua Wah Seng Suit No 2009 of 1994 High Court, Singapore (Christopher Lau JC).
632 Personal injuries -- Loss of future earnings
6 [632]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Loss of earning capacity Pre-trial loss of earningsSummary :
This action arose out of an accident in October 1993 when the plaintiff was hit by a car driven by the defendant and suffered injuries. The defendant admitted liability for the accident. The plaintiff's claim for pain and suffering and loss of amenities, estimated cost of future operations and special damages were also agreed. What had not been agreed was the plaintiff's claim for past loss of earnings, future loss of earnings and/or earning capacity. It was common ground that the injuries sustained by the plaintiff were: (a) an open fracture of lower third of the right tibia and fibula; and (b) a deep laceration measuring 15 cm over the right heel. The plaintiff was a fishmonger and at the time of the accident he operated a fresh seafood stall in addition to supplying fresh prawns on a contract basis to a restaurant. The plaintiff was unable to work for some 22 months after the accident. He could now resume work as a fishmonger but he would need the assistance of helpers where the objects he has to carry weigh more than 2 kg.
Holding :
Held
: (1) it is for the plaintiff to prove his case. If the plaintiff alleges he has an income loss of x dollars a month as a result of the accident, the burden is on him to prove that loss on a balance of probabilities. The only evidence the plaintiff relied on in this case was his own evidence. On the evidence and in the context of this case, the notice of tax assessment constituted the only independent and reliable evidence of the plaintiff's monthly loss of income. On the basis of these notices, the monthly loss during the period of incapacity was assessed as S$700 a month. The period of 22 months was accepted as the time when the plaintiff could reasonably be out of work; (2) the plaintiff's claim for loss of future earnings was in effect for the costs of the assistance the plaintiff claimed he would need to be able to continue his work as a fishmonger. It was accepted that the cost would be S$570 a month. The next issue was the period over which this sum had to be paid. This is commonly known as the multiplier and in reality is tied in to the period the plaintiff is expected to be able to continue working as a fishmonger. The plaintiff was aged 56 in 1995. It is common ground that even if he had not suffered these injuries, the plaintiff, as he advanced in years, would need help to carry heavy objects. In assessing the multiplier, this has to be taken into account. In the result, on the basis of the evidence and taking account of those factors usually considered in working out the multiplier in a claim for loss of future earnings such as the vicissitudes of life, the appropriate multiplier was assessed to be three years; (3) on the evidence, there was no basis for an additional claim for loss of earning capacity and no award was made in respect of this head of claim; (4) judgment was given for the plaintiff in the following sums: (a) pain and suffering and loss of amenities Ð S$35,000; (b) cost of future operations Ð S$4,000; (c) special damages Ð S$1,138.23; (d) pre-trial loss of earnings based on a loss of income of S$700 a month for 22 months Ð S$15,400; (e) cost of helpers based on a multiplicand of S$570 a month and a multiplier of three years Ð S$20,520.Digest :
Tan Chai Huat v Chua Wah Seng Suit No 2009 of 1994 High Court, Singapore (Christopher Lau JC).
633 Personal injuries -- Loss of future earnings
6 [633]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Loss of future earnings Assessment of.Summary :
This was an appeal from the judgment of Winslow J. The learned judge had found that the first respondent, the driver of the second respondent's lorry, was wholly to blame for the appellant's injuries. The parties had agreed to general damages for pain and suffering and loss of amenities at S$20,000 and S$19,842.35 special damages in respect of loss of earnings, etc. The learned judge also assessed loss of future earnings at S$31,084.80. The appellant appealed against this award in respect of loss of future earnings.
Holding :
Held
, dismissing the appeal: the evidence justified the findings of and the various contingencies which the learned trial judge took into consideration and in the circumstances of this case, the award for loss of future earnings was adequate and not a wholly erroneous estimate.Digest :
Nicholas Arthur Nock v Mohamed Ali bin Suleiman & Anor [1976] 1 MLJ 252 Court of Appeal, Singapore (Wee Chong Jin CJ, Chua and Kulasekaram JJ).
634 Personal injuries -- Loss of future earnings
6 [634]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Multiple injuries Victim unable to work Estate claim and dependency claim Loss of wife's servicesSummary :
J and L were involved in a traffic accident. They were both knocked down by a motor car driven by the defendant. J suffered multiple injuries including a head injury that left her with a reduced IQ and occasional lapses of memory. As a consequence of her injuries J was retrenched. L died as a result of her injuries. An action was brought against the defendant for damages. At the time of hearing J was 35 years old. At the time of her death L was 24 years old.
Holding :
Held
, allowing the claim: (1) J's head injury had resulted in her suffering a chronic organic brain syndrome. It was unlikely that she would show any improvement in the near future. J was awarded S$50,000 for this head of damage; (2) J was awarded S$35,000 as pre-trial loss of earnings. At the time of the accident J was earning about S$366 per month. In calculating her loss of future earnings, a multiplier of 13 would be applied to a multiplicand of $450, to arrive at an award of S$76,050; (3) L would have earned S$650 per month had she lived. The most reasonable multiplicand to be applied for L's loss of future earnings claim would be S$600, with a multiplier of 14, and an available surplus of 40%. The award would then be S$43,680; (4) in respect of the dependency claim for L's two children, the multiplier selected had to be selected once and for all as at the date of death. In dependency claims there was seldom sufficient evidence to calculate the loss with any degree of precision. It would be preferable in many of such cases where the estimates were in the realm of speculation to avoid attempting too detailed a calculation and to approach the issue in general terms. In respect of this head of damage a multiplicand of S$200 per month would be applied to a multiplier of 14 arriving at a total dependency loss S$33,600; (5) as the children were common beneficiaries under both heads of damages, their share of the estate claim should be deducted from the total damages payable to them; (6) there was no reason why a claim for loss of services could not be allowed, if the services could be reduced into monetary terms. However, the evidence revealed that L worked the night shift, and held part-time jobs to supplement the meagre family income. L's estate had failed to discharge the burden of proof in their claim for loss of services.Digest :
Jeya & Anor v Lui Yew Kee [1992] 1 SLR 534 High Court, Singapore (Yong Pung How CJ).
635 Personal injuries -- Loss of future earnings
6 [635]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Multiplicand Disparity in overtime pay earned by colleagues of same grade Fairest method of calculating multiplicandDigest :
Neo Kim Seng v Clough Petrosea Pte Ltd [1996] 3 SLR 522 High Court, Singapore (Judith Prakash J).
See
DAMAGES (PERSONAL INJURY OR DEATH), para 979.636 Personal injuries -- Loss of future earnings
6 [636]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Multiplier Distinction between white-collar worker and ship-mechanicSummary :
This action was for the recovery of damages for injury which the plaintiff sustained while in the employ of the defendants. The defendants admitted liability and the trial proceeded only on the issue of quantum. At the time of the accident, the plaintiff was classed as a grade 1 mechanic by the defendants. He had a basic monthly salary of $1,370 and he also often worked overtime. For the first nine months of 1991, he earned an additional $9,047 as overtime pay. This, however, was more than the overtime he had earned in the preceding years and especially in 1990 when his overtime earnings were only $3,319. In July of each year following 1991, the defendants gave their grade 1 mechanics an increment. By July 1995, the basic monthly salary of grade 1 mechanics was $1,588. These increments were also given to the plaintiff while he was on medical leave and after he returned to work although his working abilities were limited. He was also not capable of working long hours and in 1993 and 1994, he did not earn any overtime pay at all.
Holding :
Held
, assessing quantum of damages: (1) the appropriate multiplier in this case was six. The nine or ten years urged for on behalf of the plaintiff would have been too high in view of previous awards made within this jurisdiction for a 48-year-old mechanic. Even without the accident, the plaintiff would have had a shorter working life than the length that could have been anticipated for a white collar worker in view of the physical demands made on a ship's mechanic by the nature of his job; (2) the correct way to assess the plaintiff's loss overtime income was to take the average overtime earnings of the other three grade 1 mechanics for each year between October 1991 and December 1995 and give the sum of these averages to the plaintiff as the sum he would have earned. It was not right to use the income of the lower grade mechanics since their basic salary was less than that of the plaintiff and obviously they would have earned less overtime than he. Secondly, it appeared that the three other grade 1 mechanics had earned widely varying amounts as overtime during the period. The only years in which each of the three earned roughly equal amounts as overtime were 1991 and 1992. In the other years, the difference in earnings between the highest and the lowest earner varied between $2,900 and $5,400. Accordingly, to be fair, the average of each year had to be assessed. After deducting the plaintiff's actual overtime earnings in 1995 and the plaintiff was awarded $25,091 as his loss of earnings for the 51-month period between the date of accident and the date of the trial. As for future loss of earnings, the same figures accepted as the estimate of the pre-trial loss of overtime were applicable. To obtain the multiplicand for the future loss of earnings, therefore, the figure of $25,091 was divided by the 51-month period over which it had been accumulated. Multiplying that figure by six plus the CPF contributions payable by the defendants thereon, the court awarded a total figure of $41,800 for future loss of earnings; (3) while the plaintiff was still in the employ of the defendants, he was not able to earn as much as he had been able to previously because of his inability to work for long hours. Secondly, the plaintiff's disabilities were such that if he ever lost his job with the defendants he would be disadvantaged in his search for a new job. In the circumstances, both loss of future earnings and loss of earning capacity had to be awarded to the plaintiff; (4) however, as the court had already made an award for loss of future earnings Ð which would go some way to compensating him for his reduced chances in the job market if the plaintiff were to lose his present job Ð and as he was not totally incapacitated, $25,000 was a figure which would fairly reflect the plaintiff's loss of earning capacity.Digest :
Neo Kim Seng v Clough Petrosea Pte Ltd [1996] 3 SLR 522 High Court, Singapore (Judith Prakash J).
637 Personal injuries -- Loss of future earnings
6 [637]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Multiplier Whether distinction to be made between foreign worker on work permit and Singaporean Court to take judicial notice of Singapore's dependency on foreign workersDigest :
Wee Sia Tian v Long Thik Boon [1996] 3 SLR 513 High Court, Singapore (Judith Prakash J).
See
DAMAGES (PERSONAL INJURY OR DEATH), para 983.638 Personal injuries -- Loss of future earnings
6 [638]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Pain and suffering and loss of amenities Personal injuries Damages for loss of future earnings General damages for pain and suffering and loss of amenities When appellate court can interfere with award.Summary :
In this case, the High Court had awarded RM23,400 for loss of future earnings and the sum of RM48,000 by way of general damages for pain and suffering and loss of amenities. The appeal was against the quantum awarded.
Holding :
Held
: (1) the multiplier employed at arriving in the figure of RM23,400 was on the high side, as the sum was for loss of earnings from 24 June 1969 to 2 February 1974, when the respondent will be about 40 years old. The proper award should be RM16,902; (2) the respondent's age was 35 years at the time of the accident and this should have been taken into consideration in awarding damages for pain and suffering and loss of amenities. An award of RM35,000 would be reasonable under this head.Digest :
Goh Jung Suan & Anor v Wong Foot Lian [1976] 1 MLJ 262 Federal Court, Kuala Lumpur (Suffian LP, Lee Hun Hoe CJ (Borneo).
639 Personal injuries -- Loss of future earnings
6 [639]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Part-time employment Whether damages to be assessed on lump sum basis or multiplier/multiplicand methodSummary :
This appeal involved the assessment of damages arising out of a road accident on 17 July 1984 between a motor scooter ridden by the appellant and a motor pickup driven by the first respondent as the servant or agent of the second respondent. The appellant's left leg was seriously injured and the injuries caused him pain when he walked or stood for a long time. The appellant was 40 years old at the time of the accident. He held two jobs as a chainsaw operator with the Housing and Development Board ('HDB') in the day and as a security guard in the evening. As a security guard, his monthly earnings were S$200 salary, S$60 allowance and S$160 tips. After the accident, he was able to resume his job with the HDB, but was unable to continue working as a security guard in the evening. He claimed damages for pre-trial loss of earnings and loss of future earnings arising from the loss of his job as security guard. The district court awarded, inter alia, damages of S$10,920 for loss of future earnings based on a multiplicand of S$260 per month for five years and S$7,966 for pre-trial loss of earnings. As part of the damages for pre-trial loss of earnings, the sum of S$100 a month for 28 months was attributed to tips which the appellant would have received as a security guard. (Liability had been agreed on the basis of a 30% deduction for contributory negligence by the appellant.) The respondents appealed to the High Court against the award of damages for loss of future earnings and the award of tips as part of pre-trial loss of earnings. The High Court varied the trial judge's order and, inter alia, substituted a lump sum award of S$4,200 for loss of future earnings. The award as to tips was undisturbed. The appellant appealed against the variation of the award for loss of future earnings and against the district court's award of S$100 a month for tips.
Holding :
Held
, allowing the appeal in part: (1) counsel for the appellant did not challenge the valuation of tips in the High Court, where he was the respondent, and no respondent's notice to the effect that the sum of S$100 per month was too low was filed. It is not open to the appellant to challenge in the Court of Appeal what he had supported in the appeal before the High Court; (2) the Court of Appeal was unable to accept the High Court's view that the appellant could have mitigated damages and taken up a job as a hawker. The uncontradicted medical evidence was that it would be difficult for the appellant to be a hawker, and that the appellant had done well to return to his full-time job with the HDB. The appellant was only under a duty to act reasonably to mitigate his damages, and whether he had done so was a question of fact. The trial judge's finding on this point should not have been disturbed; (3) the appellant counsel's submission that the appellant's steady monthly income provided a firm basis for calculating his loss of future earnings, was accepted, there being nothing in the present case to make an arbitrary lump sum assessment more appropriate than the multiplier/multiplicand method. The damages awarded by the trial judge were not excessive, and the award of S$10,920 net for loss of future earnings was accordingly restored.Digest :
Chow Khai Hong v Tham Sek Khow & Anor [1992] 1 SLR 4 Court of Appeal, Singapore (Yong Pung How CJ, LP Thean and Karthigesu JJ).
640 Personal injuries -- Loss of future earnings
6 [640]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Plaintiff 59 years old at time of sustaining injuries Whether award for loss of future earnings should be set aside Civil Law Act 1956, s 28A(2)(c)Summary :
The defendant sustained injuries as a result of an accident involving a bus in which he was a passenger. The bus was owned by the appellant. The defendant brought an action against the appellant claiming damages for the injuries sustained. The appellant admitted 100% liability. The sessions court judge made an award of RM777 for special damages. In addition, he had also made an award for general damages of RM24,000 for pain and suffering and loss of amenities for shortening (RM20,000) and for minor lacerations (RM4,000) and of RM7,560 for loss of earnings. The appellant appealed to the High Court contending that the award for loss of earnings should not have been made.
Holding :
Held
, allowing the appeal: having regard to s 28A(2)(c) of the Civil Law Act 1956, no loss of future earnings shall be awarded where the plaintiff was aged 55 years or more at the time of injury was sustained. In the instant case, the plaintiff was already 59 years old when he sustained the injuries. Accordingly, as the computation of loss of future earnings should commence from the date of the injury, the award of RM7,560 for pre-trial loss of earnings had to be set aside.Digest :
Tan bin Hairuddin & Anor v Bayeh Civil Appeal No 12-4-89 High Court, Ipoh (Abdul Malek J).
641 Personal injuries -- Loss of future earnings
6 [641]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Promotion prospects Damages for loss of future earnings Loss of post-retirement earnings.Summary :
This was an appeal from the decision of the Federal Court reported at [1981] 2 MLJ 24. The appellant had been injured in a road accident and suffered minimal brain damage. Liability was admitted and the only issue was damages. The learned trial judge made awards as follows: (a) Pain and suffering and loss of amenities of life RM70,000; (b) Loss of future earnings up to retirement RM112,722.80; (c) Loss of future earnings after retirement RM60,908.00; (d) Loss of gratuity RM10,000; (e) Special damages for transport RM500; Total RM$254,130.80. On appeal, the Federal Court upheld the award of general damages, suffering and loss of amenities of life, and of special damages. They made no award for loss of earning up to date of retirement but in respect of earnings after retirement, they awarded a sum of RM31,172.23. Their substituted award was as follows: (i) General damages for pain and suffering and loss of amenities of life RM70,000; (ii) Loss of future earnings prior to retirement Nil; (iii) Loss of future earnings after retirement RM31,172.23; (iv) Loss of gratuity Nil; (v) Special damages RM500; Total RM101,672.23. The Federal Court held that the assessment of loss of future earnings by the learned judge which was based on the difference between the respondent's existing salary and what he would get as a Superscale G (on his passing the Bahasa Malaysia examinations) was untenable.
Holding :
Held
: (1) the Federal Court's view that a promotion to Superscale G was not even a possibility at the time of the accident could not be sustained in the light of the judge's finding of the prospects of the appellant's passing his examinations. The Federal Court was right in holding that the taking of 13 years as the period of loss was too long. One-third of the judge's award would therefore be reasonable and the Privy Council assessed the loss at RM37,600; (2) the Federal Court's figure for loss of post-retirement benefits was not unreasonable, even if account be taken, contrary to the Federal Court's view, of a possible loss of some pension and gratuity as well as of a job. There would be no justification therefore for interfering with the Federal Court's figure for this item of loss.Digest :
K Ratnasingam v Kow Ah Dek & Anor [1983] 2 MLJ 297 Privy Council Appeal from Malaysia (Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Scarman, Lord Bridge of Harwich and Lord Templeman).
642 Personal injuries -- Loss of future earnings
6 [642]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Use of annuity tables Direct application method more appropriate for SingaporeSummary :
The appellant was injured in an accident between his vehicle and that of the respondent. He claimed damages from the respondent who did not contest liability. At the time of the accident the appellant was a machine operator. Evidence was led to show that the appellant had been promoted to machine-leader and was earning S$460 per month. With overtime he earned a monthly gross sum of S$881.11. On returning to work the appellant found that he could no longer operate machines because of poor vision in his left eye caused by the accident. He was made a store-man. As a store-man overtime was rare, and the appellant earned almost no overtime allowance at all. The appellant had also lost the prospect of being promoted to foreman. Damages were assessed by the registrar at S$133,756, out of which S$89,500 was awarded for future loss of earnings. In arriving at this figure the registrar had used two multiplicands of S$270 and S$350 and had made use of the annuity tables. The respondent appealed and the damages were reduced by the judge to S$54,000, using a multiplicand of S$300. The appellant appealed.
Holding :
Held
, allowing the appeal in part: (1) the proper multiplicand had not been used by the registrar or the judge. A more realistic multiplicand would have been S$420. With the agreed multiplier of 15 the award for loss of future earnings would be S$75,600; (2) Obiter: in the interests of uniformity and clarity of the legal practice in Singapore, it was desirable that the direct application method be employed when calculating damages.Digest :
Tay Cheng Yan v Tock Hua Bin & Anor [1992] 1 SLR 761 Court of Appeal, Singapore (Yong Pung How CJ, LP Thean and Goh Joon Seng JJ).
643 Personal injuries -- Loss of future earnings
6 [643]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Whether allowance received by plaintiff for undergoing training as a teacher earnings Whether plaintiff engaged in gainful activity Civil Law Act 1956, s 28A(2)(b)Summary :
The defendant suffered severe head injury as a result of a road accident involving her bicycle and the plaintiff's motor car. Liability for the accident was agreed to by the parties. In assessing damages for loss of future earnings, the learned judge took into consideration the monthly allowance received by the defendant for undergoing training as a teacher. The learned judge was of the view that a teacher undergoing training could be considered to be engaged in gainful activity. The learned judge in calculating the award of damages for the cost of future care and loss of future earnings had applied the direct multiplier rather than used the annuity tables. In their appeal to the Supreme Court against the awards on quantum, the plaintiff contended, inter alia, that the learned judge had misdirected himself in concluding that the monthly allowance received by the defendant was earnings under s 28A(2)(c)(i) of the Civil Law Act 1956. Counsel for the plaintiff contended that by receiving the monthly allowance, the defendant could not be said to be receiving earnings by her labour or other gainful activity. It was also contended that the learned judge ought to have applied the annuity tables in calculating the award of damages and had misdirected himself in holding that the direct multiplier should apply in the instant case.
Holding :
Held
, dismissing the appeal: (1) in construing s 28A(2)(c)(i), the expression 'earnings' had to be read together with the words 'or other gainful activity'. Their Lordships were of the opinion that the expression 'earnings' in s 28A(2)(c)(i) was intended to be used in a popular sense. Their Lordships accordingly held that the training undertaken by the defendant to enable her to become a teacher was an activity which had resulted in a gain of RM345 per month for her and that this sum of money was therefore earnings contemplated by s 28A(2)(c)(i); (2) in the instant case, the learned judge had not misdirected himself in applying the direct multiplier rather than using the annuity tables in calculating the award of damages for the costs of future care and loss of future earnings. Their Lordships held that there was no necessity for any legislation to repeal the usage of the annuity tables in calculating the award of damages which was more a matter of practice than of law.Digest :
Marappan a/l Nallan Koundar & Anor v Siti Rahmah bte Ibrahim [1990] 1 CLJ 32 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).
644 Personal injuries -- Loss of future earnings
6 [644]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Whether appellant receiving any earnings at time of accident so as to be entitled to award Appellant on no pay leave at time of accident Whether appellant entitled to alternative claim for loss of earning capacity Civil Law Act 1956, s 28A(2)(c)Summary :
The plaintiff, a qualified registered nurse in Holland, took no pay leave from her employment for a period of two and a half years to enable her to go on a world tour. While in Malaysia, the plaintiff met with an accident on 24 October 1984 when a bus belonging to the second defendant and driven by the first defendant knocked into her. The plaintiff sustained serious injuries including spinal fracture with paralysis of the lower limbs, bladder and bowel functions. Liability was admitted by the defendant. By consent, a sum of RM80,000 as general damages for pain and suffering and loss of amenities was awarded to the plaintiff. The defendants also agreed to a sum of RM55,880 being awarded to as agreed loss of earnings from the date of the accident until the date of trial. The plaintiff's claim for loss of future earnings was dismissed by the High Court on the ground that it was not proved that the plaintiff was earning at the time she met with the accident. The plaintiff appealed to the Supreme Court. The plaintiff contended that the learned judge erred in law in dismissing her claim for loss of future earnings and is not allowing her alternative claim for loss of earning capacity. The issue before the Supreme Court was whether the plaintiff was entitled to prosecute a claim for loss of future earnings under s 28A(2)(c) of the Civil Law Act 1956.
Holding :
Held
, allowing the plaintiff's claim for loss of earning capacity: (1) having regard to s 28A(2)(c), it was clear that the intention of the legislature in awarding damages for loss of future earnings was that only the amount that the plaintiff was receiving at the time she was injured can be taken into account, which meant that if the plaintiff was not receiving any earnings at that point of time, she did not qualify for any award of damages for loss of future earnings. In the instant case, as the plaintiff was on no pay leave and was not receiving any earnings at the time of the accident, she was not entitled to any award of damages for loss of future earnings. The Supreme Court also directed that the order for the sum of RM55,880 awarded to the plaintiff as agreed loss of earnings from the date of the accident until the date of the trial be cancelled; (2) the plaintiff was however, entitled to be compensated for her loss of earning capacity. In the instant case, the plaintiff had suffered a total loss of earning capacity for the rest of her working life. A sum of RM200,000 was awarded to the plaintiff for loss of earning capacity. Together with the award for pain and suffering, the plaintiff was, therefore, entitled to a total of RM280,000 as a fair and reasonable award under general damages together with interest thereon at the rate of 8% pa from the date of the service of the writ to the date of payment. The amount awarded by the High Court for special damages plus interest at 4% pa from the date of the accident to the date of judgment was upheld by the Supreme Court.Digest :
Dirkje Pieternella Halma v Mohd Noor bin Baharom & Ors [1990] 3 MLJ 103 Supreme Court, Malaysia (Mohamed Azmi, Ajaib Singh and Gunn Chit Tuan SCJJ).
645 Personal injuries -- Loss of future earnings
6 [645]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings Whether court in assessing damages for loss of future earnings should deduct living expenses of plaintiff at time of injurySummary :
The respondent while riding a motor cycle, collided with a car driven by the first appellant in the opposite direction. The respondent's right leg had to be amputated above the knee as a result of the accident. The respondent was a daily-rated kernel meal packer at a palm oil mill before the accident but had been unemployed since then. The respondent claimed damages for negligence and gave evidence that the first appellant, at the time of the collision, was overtaking another vehicle and had encroached on his side of the road. The respondent, however, admitted in cross-examination that he had made an error of judgment in thinking that the first appellant would be able to overtake in time and avoid a collision. Evidence that the first appellant had pleaded guilty to a charge of dangerous driving, was admitted by the judge. The first appellant did not give any evidence at the trial. The High Court found the first appellant 100% liable for the collision. The respondent testified that before the accident, his monthly earnings was RM310 and he spent RM5 per day for his meals at work. The respondent also admitted that he went to work by motor cycle and he spent RM60 per month on petrol. The High Court awarded the respondent, inter alia, damages for loss of future earnings amounting to RM37,324 without considering the deductions in respect of the cost of the respondent's petrol consumption and his meals at work. The appellants appealed to the Supreme Court. The appellants contended that in view of the respondent's admission of error of judgment, the appellants were only 70% liable for the collision. The respondent argued that his living expenses before the accident, should not be deducted in assessing his loss of future earnings and his monthly earnings should be calculated on the basis that he worked 30 days a month.
Holding :
Held
, allowing the appeal in part: (1) the respondent's admission of error of judgment, was only a suggestion of such a possibility because throughout his evidence, he had said that he took evasive action on sight of the first appellant's on-coming car; (2) the damage to the respondent's motor cycle would be consistent with his version of how the collision occurred; (3) it was proper for the judge to admit evidence of the first appellant's plea of guilty. The judge's finding that the first appellant was wholly negligent, did not rest entirely on the first appellant's admission but on the totality of the evidence. The appeal on the point of negligence was thus dismissed; (4) the method of assessing damages in fatal accident cases is provided in s 7 of the Civil Law Act 1956 while the assessment of damages in respect of personal injury which does not result in death, is governed by s 28A of the 1956 Act; (5) under s 28A(2)(c)(iii) of the 1956 Act, the amount of damages for loss of future earnings should be diminished by the plaintiff's living expenses at the time when he was injured. Since the same language was used in ss 7(3)(iv)(c) and 28A(2)(c)(iii) of the 1956 Act, the Legislature had to have intended the term 'living expenses' in both the provisions to bear the same meaning; (6) in assessing the damages for loss of future earnings in this case, the expenses incurred by the respondent in respect of his meals and petrol consumption should be deducted. The cost of the respondent's meals at work should be multiplied by 26 as that was the number of normal days of work in a month under the Employment Act 1955; (7) the appeal against the quantum of damages was accordingly allowed and the amount of damages for post-trial loss of earnings was thereby reduced to RM20,640.Digest :
Chang Chong Foo & Anor v Shivanathan [1992] 2 MLJ 473 Supreme Court, Malaysia (Harun Hashim, Mohamed Yusoff and Peh Swee Chin SCJJ).
646 Personal injuries -- Loss of future earnings and loss of earning capacity
6 [646]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings and loss of earning capacity Whether loss of future earnings and earning capacity can be implied where injuries lead to continuing and permanent disability Whether judge misdirected himself on the scanty medical report Whether amount of award given for loss of earning capacity was unwarrantedSummary :
On 19 December 1987, the plaintiff was seriously injured in a motor accident. He was riding on his motorcycle along Jalan Pengkalan Pegoh when he saw two motor cars coming from the opposite direction. The second car, driven by the first defendant ('vehicle PR'), was attempting to overtake the first car, driven by the second defendant ('vehicle AM'). The plaintiff swerved to the left into an open area. At the same time, the first defendant also drove across the road into the same open area, wanting to avoid a head-on collision with the plaintiff. The plaintiff and vehicle PR collided, with the plaintiff sustaining serious injuries. At the trial, the second defendant claimed that he had no knowledge of the accident as vehicle AM had been sold to one Mat before the accident. At the end of the trial, the court gave judgment to the plaintiff, holding the first defendant 100% to blame for the accident. The first defendant appealed against the decisions in respect of the assessment of damages for the plaintiff and non-apportionment of liability with the second defendant.
Holding :
Held
, dismissing the appeal in relation to the plaintiff and allowing the appeal in relation to the second defendant: (1) in assessing general damages, the future loss of earnings and loss of earning capacity can be implied in law, and is included in cases where the injuries suffered were such as to lead to continuing or permanent disability. The trial judge had not misdirected himself even with the scanty medical report regarding the loss of earning capacity. Being a manual worker, the plaintiff had undoubtedly suffered a set-back for life, especially with some wasting of the right forearm muscles and some shortening of the leg concerned. Therefore, the award of RM12,600 was not unwarranted, and the appeal should not be allowed; (2) the principles guiding an appellate court in dealing with the findings of fact by a court of first instance are where no question arises as to the truthfulness and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court. However, here, the trial judge did not misdirect himself as a judge of law and of fact; (3) regarding the question of negligence to determine liability, making the best use of the evidence as adduced on record, it was more probable that the second defendant's driver had suddenly swerved onto the main road as maintained by the first defendant. This means that the evidence of the first defendant had raised a prima facie case of negligence on the part of the second defendant; (4) a defendant is not under an obligation to give evidence but he cannot complain if, on a narrow balance of probability, the evidence justified the court in drawing the inference of negligence against him. Here, the failure of the driver to give a statement regarding the accident to the police in the circumstances of the case justified the court drawing the inference of negligence contributing to the accident against the second defendant. Liability was thus apportioned equally between the first and second defendant; (5) it is more probable that a motor car is driven by the owner or his servant or agent and it is prima facie evidence that when driven, it is with the authority of the owner. This is evidence that can be rebutted by proof of the actual facts. Since there was no evidence from the so called Mat, and no evidence of the alleged sale transaction, the second defendant had failed to rebut the prima facie case of agency.Digest :
Lee Chong Keong v Cheang Kok Weng & Anor [1996] 4 MLJ 133 High Court, Ipoh (Chin Fook Yen JC).
647 Personal injuries -- Loss of future earnings and loss of earning capacity
6 [647]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings and loss of earning capacity Distinction Pre-trial loss of earnings Loss of earning capacity.Summary :
In this case, the respondent sustained injuries as a result of a motor accident due to the alleged negligence of the first appellant in driving a motor lorry as the servant or agent of the second appellant, the owner of the said vehicle. The learned trial judge found the lorry driver wholly to be blamed and liable for the accident. He awarded damages (inter alia): (i) for partial loss of pre-trial earnings for 30 months at RM500 pm = RM18,000 with 4% interest from date of accident; and (ii) for loss of future earnings on 15 years' purchase at RM500 pm = RM62,300 with no interest. The appellants appealed against these awards.
Holding :
Held
: (1) from the facts and circumstances in this case, the period of five months should be deducted from the 30 months as the respondent worked only ten months a year and the sum of RM300 is a fair and reasonable sum for monthly partial loss of income instead of RM500 bearing in mind that his average monthly income according to his income tax returns was RM800. The award of RM18,000 should therefore be reduced to RM7,500; (2) in the circumstances, there was substantial or real risk that the respondent will be unable to carry on his work as a tractor driver but would get a less well-paid employment or source of earning because of the effect of the injuries sustained. He should therefore be awarded damages for loss of earning capacity instead of loss of future earnings. The sum of RM32,000 would be fair and reasonable compensation assessed at RM300 pm for a period of 12 months' purchase. The sum of RM62,000 awarded is manifestly excessive and is set aside and substituted with the sum of RM32,000.Digest :
Krishnan & Anor v Chow Wing Khuan [1987] 2 MLJ 691 Supreme Court, Kuala Lumpur (Abdul Hamid Ag LP, Seah and Syed Agil Barakbah SCJJ).
648 Personal injuries -- Loss of future earnings and loss of earning capacity
6 [648]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings and loss of earning capacity Multiplier to be used Question of law Court not bound by parties' concession on multiplierSummary :
The plaintiff, who was a woman police constable employed by the Port Authority of Singapore (PSA), was injured in a motor accident caused by the defendant. As a result of the accident, she developed post traumatic organic brain syndrome with fits/mood instability and was unable to perform her normal duties as a policewoman. The plaintiff being 34 years old at the time of the assessment, the assistant registrar assessed the plaintiff's loss of future earnings to be S$404,176, based on a multiplier of 16 and the finding that the plaintiff would have been promoted to a corporal but for the accident. The multiplier of 16 was agreed to by both parties. The defendant appealed against the assessment of the assistant registrar.
Holding :
Held
, allowing the defendant's appeal: (1) the multiplier was one of two components to determine the quantum for loss of future earnings. At the end of the day, the issue for the court to decide was what was the proper quantum; (2) the question of multiplier would be a question of law and even if a concession was made it could be retracted. The court was not bound to accept a concession on a point of law which was not correct; (3) using a multiplier of 16 would give a capital sum which would compensate the plaintiff over a period of 26 years assuming that the interest rate was at 4%. As the current interest rate exceeded that rate, the assistant registrar's award would have compensated the plaintiff on the basis that she would be working as a corporal with PSA until the age of 60; (4) however, under the plaintiff's employment with PSA, the plaintiff could have optional retirement at 45 and the compulsory retirement age was 50. As such, the maximum number of years she could be employed with PSA Police would be 16 years, not 26 years; (5) upon retiring from PSA Police at 50 the plaintiff could continue working in some other lesser capacity (eg in a factory) for up to 60 years, earning something more modest, say, S$800. Taking other contingencies into account, eg she might have stopped work for various personal reasons, a multiplier of 11 was fair, using the multiplicand of S$1,742 adopted by the assistant registrar; (6) using this multiplier, the loss of future earnings would be S$229,944; (7) an additional payment of S$35,265 was due to the plaintiff for employer's CPF contributions and tax payable.Digest :
Kartina bte Mohd Nor v Pee Tian Leng (An Infant) Suit No 582 of 1992 High Court, Singapore (Chao Hick Tin J).
649 Personal injuries -- Loss of future earnings and loss of earning capacity
6 [649]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of future earnings and loss of earning capacity Whether deduction for income tax to be made in assessing damages Duty to mitigateSummary :
On 13 January 1990, the respondent was riding a motor cycle along New Bridge Road when he was involved in a collision with a motor bus driven by the first appellant. Following the collision the respondent was admitted to hospital with multiple injuries including cervical contusions, fractured limbs, a lacerated liver and a closed injury to the head with cerebral oedema. He was discharged on 11 August 1990. He sued the appellants for damages and the parties agreed liability at 90% to the appellants. At the trial the only argument was on quantum. The respondent called the evidence of a specialist on his injuries. The specialist testified that the respondent was paralysed from the waist downwards, both his limbs were spastic, one ankle was without any power and he walked with a calliper to prevent the right foot from dropping down. The specialist was of the view that there was not likely to be any further significant improvement to the respondent's condition. The specialist was of the view that the respondent was not totally unemployable and that with a hand splint, the respondent could work as a lift attendant or telephone operator. The respondent testified that he worked as a painter and welder. At the time of the accident he was working as a daily rated welding sub-contractor with Boon Tong Ship Repairs, earning an average of S$45 per day. There were times when he earned between S$1,800 and S$1,900 a month but that was with overtime. The respondent's employers gave evidence that the respondent's average earnings per month were S$1,350. The issues before the trial judge were (i) whether a deduction for income tax should be made from the damages due to the respondent; (ii) whether the respondent had failed to mitigate his loss; (iii) whether the respondent was entitled to pre-trial loss; and (iv) the amount of the multiplicand, the appropriate multiplier having been agreed at 15. The trial judge awarded the respondent pre-trial loss of S$37,000. He further held that the respondent had not failed to mitigate his loss, and further fixed the multiplicand of S$1,400 for post-trial loss. The trial judge also ruled that no income tax was payable on the damages awarded. The appellants appealed.
Holding :
Held
, dismissing the appeal: (1) the court should award the injured party such sum of money as will put him in the same position as he would have been if he had not sustained the injuries. Accordingly where an award was made for loss of earnings, deduction for income tax should be made as such damages represented compensation for non-receipt of a taxable income; (2) however, where an award was made for loss of earning capacity, no income tax deduction ought to be made. Damages awarded for loss of earning capacity was meant to compensate loss of a capital asset, which was non-taxable; (3) the instant case was not one of compensation for loss of earning capacity, but one involving real assessable loss of earnings. The respondent was earning at the time of the accident and there was a firm basis for the court to calculate his loss of earnings past and future. Such earnings would have been subject to income tax. Accordingly an appropriate deduction for income tax would be made in assessing the respondent's pre-trial and post-trial loss of earnings. In estimating the respondent's liability for income tax the court had to do its best to arrive at a reasonable figure, even though it could not be said to be an exact one; (4) the onus of proof on mitigation was on a defendant. In the instant case the appellants failed to discharge this onus. The only evidence on the question of the mitigation was given by the respondent's specialist. The court was not satisfied that this evidence was sufficient proof that the respondent failed to mitigate his loss; (5) the court fixed the respondent's pre-trial loss at S$31,200 after deductions for income tax and expenses. For post-trial loss, the court allowed a sum of S$1,200 per month after making deductions for income tax and expenses; (6) as a general rule interest should be split into pre-trial and future loss.Digest :
Teo Sing Keng & Anor v Sim Ban Kiat [1994] 1 SLR 634 Court of Appeal, Singapore (Yong Pung How CJ, LP Thean JA and Goh Joon Seng J).
650 Personal injuries -- Loss of past and prospective earnings
6 [650]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Loss of past and prospective earnings Intervention of the appellate court Damages for loss of past earnings and loss of prospective earnings When appellate court will interfere with assessment of damages.Summary :
The appellant appealed against the award of damages for loss of earnings, which had been awarded to him when he obtained judgment against the driver and owner of a taxi which had knocked him down. It was alleged that the learned trial judge had not given an award for loss of past earnings. The learned trial judge awarded RM12,000 for loss of earning capacity. The appellant had sought to prove that he was a labour contractor by producing a letter from a construction company, but no one from the company was called to give evidence.
Holding :
Held
, allowing the appeal: (1) the appellate court can only interfere with the award of damages by the trial court if it is shown that the trial judge has acted on a wrong principle of law or that he has misapprehended the facts or he has made a wholly erroneous estimate of the damage suffered; (2) in this case, the learned trial judge would have been justified in holding that the appellant but for the accident could have earned RM200 a month as a labourer and therefore he should have awarded RM14,800 for loss of past earnings for 74 months and RM13,000 as general damages for loss of prospective earnings; (3) the learned trial judge was correct in refusing to admit the letter from the company as not all reasonable efforts had been made to find the author of the letter.Digest :
Mahmod bin Kailan v Goh Seng Choon & Anor [1976] 2 MLJ 239 Federal Court, Johore Bahru (Suffian LP, Lee Hun Hoe CJ (Borneo).
651 Personal injuries -- Lump sum award; overlapping
6 [651]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Lump sum award; overlapping Change in the value of money Personal injuries Quantum Assessment Whether court may add 20% to award owing to increase in cost of living Lump sum award Scaling down of award on the ground of overlapping Increase in cost of living.Summary :
In this case, the plaintiff had obtained damages for personal injuries suffered by her and caused by the negligent driving of the defendant. The deputy registrar assessed general damages in the sum of S$28,800. The defendant thereupon appealed to the High Court on the ground that the deputy registrar having assessed general damages in the sum of S$24,000 had wrongly increased them by 20%, that is, had added the sum of S$4,800 to the award on the ground that there was a discernible trend of a 20% increase in the recent awards of the High Court. Wee Chong Jin CJ, who heard the appeal, reduced the award by the said sum of S$4,800 ([1972] 1 MLJ 202). The plaintiff thereupon appealed to the Court of Appeal.
Holding :
Held
: dismissing the appeal: (1) the method adopted by the deputy registrar in assessing general damages was wrong; (2) he was also wrong in assessing total damages and then applying a blanket increase of 20%; (3) a lump sum should have been awarded after taking into consideration all the relevant factors, including the increase in the cost of living; (4) as there were several injuries the principle of overlapping was applicable and the Deputy registrar was wrong in not scaling down the total on that account;the amount of S$24,000 awarded as general damages in this case was not so inordinately low as to be a wholly erroneous estimate of the damage.Digest :
Phuah Jee Suan v Nila Vasu Pillai [1973] 1 MLJ 186 Court of Appeal, Singapore (Chua, Choor Singh and Tan Ah Tah JJ).
652 Personal injuries -- Medical expenses
6 [652]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Medical expenses Claim for sum spent on trip for initial assessment and treatment disallowed Whether claimable 0Digest :
Emran bin Haji Abdul Rahman v Keasberry Civil Appeal No 5 of 1995 Court of Appeal, Brunei (Fuad (President).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 452.653 Personal injuries -- Multiple fractures
6 [653]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple fractures Overlapping Injuries to arm and leg Whether to be considered overlapping or separate Leg 2 [1/4]" shortening Compound fracture of right thigh Arm Elbow Compound fractured-dislocation of right elbow.Summary :
The first plaintiff, a marine workshop assistant aged 32, was involved in a road accident and suffered (i) compound fracture of the right thigh; (ii) compound fractured-dislocation of the right elbow; and (iii) fracture of the right humerus. He was hospitalized for two to three months and underwent three operations. His right leg was 2[1/2] inches shorter. The movement of his right arm was severely restricted and, in the opinion of the surgeon, 'he could not function really effectively because of lack of manual dexterity in so far as his right arm is concerned and because of leg inequality in that he walks with a list to one side and he stands without his left knee being properly lodged'. He claimed for general damages under two main headings: (a) loss of amenities of life, together with compensation for the pain and suffering and shock he had sustained; and (b) loss of prospective future earnings.
Holding :
Held
: (1) for the purpose of considering damages and compensation, one must consider the joint effect of the injuries and the consequent loss of amenities of which the injured person had been deprived by the totality of those injuries; (2) for the shock and pain and suffering he had sustained and the loss of amenities he had suffered as a result of injuries to his right arm and right leg, general damages at B$27,000 was assessed; (3) for damages for loss of future earnings, one must consider the plaintiff's present salary on an incremental scale; in this case, the plaintiff's prospective loss of earnings by reason of the injuries and incapacity he had suffered was assessed at B$22,500.Digest :
Hassan & Ors v Awangku Shahbuddin [1970] 2 MLJ 85 High Court, Bandar Seri Brunei (Rigby CJ).
654 Personal injuries -- Multiple fractures
6 [654]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple fractures Permanent disablement Personal injuries Fracture of right femur and humerus, left wrist, and radius and ulna of left forearm Permanent disablement Assessment of special and general damages.Summary :
The defendant, a 52-year-old estate manager earning RM1,450 pm and yearly bonus, sustained serious injuries (ie fracture of the right femur, the right humerus, the left wrist and the radius and ulna of the left forearm). These injuries caused permanent disablement and he had become no longer physically able to carry out the strenuous duties of an estate manager and was consequently relegated to sedentary office work. He was in fact re-employed as office manager at RM500 pm. The learned judge awarded the defendant special damages of RM19,572.17, and general damages of RM80,000. On appeal, it was argued that the learned trial judge should have held on all the evidence that the defendant had not discharged the onus of showing that the other driver (the third appellant) rather than himself was negligent and should have found the defendant at least equally to blame for the accident.
Holding :
Held
: (1) a careful study of the plans and photographs in every way confirmed the evidence of the respondent/defendant and the findings of negligence by the learned trial judge; (2) the award of RM80,000 as general damages and RM19,572.19 as special damages should be reduced to RM50,000 as general damages and RM15,840.75 as special damages.Digest :
San Seong Choy & Ors v Yuson Bien [1963] MLJ 235 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Barakbah JJA).
655 Personal injuries -- Multiple injuries
6 [655]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuriesSummary :
The plaintiff was travelling as a passenger in a motor car which stopped at a traffic junction when a van driven by the defendant coming in the opposite direction collided into it. The plaintiff sustained multiple injuries as a result thereof. The court made the following award of damages: for cerebral concussion, RM1,500; for a 1cm laceration on the left cheek, three small lacerations on the chin and superficial abrasion on left elbow, RM2,000; for fracture of the lower end of the radius, resulting in deformity of the left wrist and weakened grip, RM5,000; for fracture of the left wrist, RM15,000; for fracture of the left femur, RM6,000; for fracture of the pelvis, separation of the left sacro illiac joint, fracture of the left acetabulum and fracture of both rami of the pubic bone resulting in the plaintiff being in pain and being unable to walk without the aid of crutches and having restricted left hip movement, RM40,000.
Digest :
Fatimah bte Derakman v Wan Jusoh bin Wan Kolok Civil Suit No 27 of 1985 High Court, Kuantan (Lamin J).
656 Personal injuries -- Multiple injuries
6 [656]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Assessment of damages Global approach vs component approach Special damages, principles on which awarded Treatment by Chinese physician Claim for cost of treatment as special damages Phobia arising from accident Damages for phobias and neuroses Interest on special and general damagesSummary :
The plaintiff was a pillion rider on a scooter ridden by the third defendant. The scooter was involved in an accident with a bus owned by the first defendant and driven by the second defendant. The plaintiff suffered multiple injuries, including a wedge compression fracture of the thoraic 12 vertebra and a fracture of the upper end of the right tibia resulting in continuing disability at the knee. She sued all three defendants. Included in her claim was a claim for the cost of treatment by a Chinese physician. The plaintiff also claimed that she had developed a phohia of motor cycles as a result of the accident. The learned judge found that the third defendant was wholly liable for the accident. The main issue was the assessment of general and special damages
Holding :
Held
: (1) in assessing damages for multiple injuries, the court might adopt either a global approach (ie awarding one sum to cover all injuries and claims) or a component approach (ie awarding separate amounts for each head of damage and totalling the awards). Which approach was appropriate depended on the facts of the case, bearing in mind the need to avoid overlapping. When the injuries sustained were related to the same part or function of the body, there should only be one award of damages. Where the injuries were to different parts of the body and affect different functions it would be appropriate to make a separate award for each head of damage; (2) in the instant case the plaintiff suffered injuries to the knee and to the spine, so a component approach was appropriate; (3) special damages were the additional expenses and loss in terms of money which had actually been incurred up to the date of the trial. Since plaintiffs were entitled to recover all expenses reasonably incurred by them in the treatment of their injuries, damages could be claimed in respect of fees for medical advice and surgical operations, the cost of treatment and care in a hospital, and the cost of surgical appliances, drugs and other prescriptions. Even where medical diagnosis and advice prove to have been wrong, the expenses incurred were admissible if the advice had been taken in good faith from a reputable medical practitioner; (4) the test of where the expense of treatment by a Chinese physician was recoverable was whether it was reasonable for the plaintiff to have sought such treatment. There should be some evidence before the court that the traditional treatment was undergone on reliable advice with a reasonable expectation of benefit and not just on impluse of the plaintiff. This would be especially relevant if the traditional treatment were to overlap with a course of conventional treatment, as a plaintiff should not normally be entitled to recover the expenses of both forms of treatment undergone at the same time; (5) in the instant case, the plaintiff had already started with conventional physiotherapy and there was no evidence that she had received any reliable advice before she changed her mind and went to the Chinese physician on her own. There was also no evidence that she benefitted in any way from this alternative treatment. The claim for such expenses was therefore disallowed; (6) as for the plaintiff's claim that she had developed a phobia, it was held that although neuroses, phobias and other psychic disorders can be taken into account in awarding aggravated damages for main injuries, there was no medical evidence in the instant case that the plaintiff had suffered any more than the normal mental anxiety that would have been natural reaction to such an accident. The learned judge therefore did not feel justified to take this into account either as a separate head of claim or as a reason for increasing the damages already awarded; (7) the plaintiff was awarded S$10,000 in damages for the injury to her spine and S$25,500 for the injury to her knee. Interest was awarded on the damages for loss of earnings at 3% to the date of judgment. Interest on the award of general and special damages was assessed at 6% pa from the date of the writ until the date of judgment.Digest :
Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 3 MLJ 144 High Court, Singapore (Yong Pung How J).
657 Personal injuries -- Multiple injuries
6 [657]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Eye and liver Multiple injuries including injury to liver and eye $11,500 as general damages.Summary :
The plaintiff in this case suffered personal injuries and loss as a result of a collision between his motor cycle and the defendant's lorry. The court accepted the plaintiff's evidence that the lorry was stationary with its rear lights switched off when the collision took place. The plaintiff suffered the following injuries: (i) laceration on left forehead, 3[1/2] inches extending to left upper and lower eyelids the plaintiff could not open his left eye; (ii) laceration of 1 inch on left upper lip; (iii) laceration of [1/2] inch on lower lip; (iv) puncture wound at medial end of left clavicle; (v) superficial abrasion on right anterior chest. He also had to undergo surgery. He sustained a laceration of 3 inches on the superior surface of liver on right lobe it was bleeding. There was blood in the peritoreal cavity and a slight contusion of the greater curvature of the stomach. He was hospitalized for 14 days and was unable to work for 70 days. He was earning wages of RM300 a month.
Holding :
Held
: special damages of RM700 and a global sum of RM11,500 as general damages based on 100% liability of the defendants was awarded to the plaintiff.Digest :
Siow Choo Foo v Lee Peng Lay & Anor [1981] 2 MLJ 336 High Court, Muar (Yusoff Abdul Rashid J).
658 Personal injuries -- Multiple injuries
6 [658]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Fracture of radius, ulna and right femur General damages at $34,000 Fracture of acetabulum and ramus of pubic bone General damages at $40,000.Summary :
This was an appeal from the decision of Shankar J in [1986] 1 MLJ 351. The Supreme Court unanimously held the first plaintiff and the defendant equally liable for the accident. The appeal against quantum was not disturbed and the judgment of the Supreme Court was incorporated in an order of court.
Digest :
Mahat bin Abdul Majid & Anor v Lau Kui & Anor [1986] 2 MLJ 191 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).
659 Personal injuries -- Multiple injuries
6 [659]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Future loss of earning capacity Future loss of earning capacity.Summary :
The first appellant sustained the following injuries: (i) Compound fracture of the right femur. (ii) Fracture of the left clavicle. (iii) Compound fracture of the right tibia and fibula resulting in 2 cm shortening of the right leg. (iv) Supramalleolar fracture of the right ankle resulting in foot drop. According to the medical expert evidence, the changes in the right ankle joint will be likely to be aggravated in the next five or ten years. The learned judge held that the appellant was not entitled to any future loss of earning capacity, but he awarded out of a desire to assist him the sum of RM1,800 as loss of prospective earnings during hospitalization and recuperation and not as loss of future earnings or loss of earning capacity. He assessed the award at RM200 a month for a period of nine months.
Holding :
Held
, allowing the appeal: (1) the award of RM1,800 appeared to be pre-trial loss of earnings which the appellant was not entitled to claim being unemployed at the material time; (2) the learned judge erred in refusing to make any award for future loss of earning capacity. There was more than sufficient evidence of the likelihood that the appellant will be able to obtain employment and that in five or ten years the injury to his right ankle will be aggravated with osteoarthritis setting in and increasing as he grows older and will thereby affect his earning capacity; (3) the court awarded him RM12,000 for future loss of earning capacity based on a loss of income of about RM100 a month for 14 years; (4) the award of RM1,800 should be set aside.Digest :
Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] 2 MLJ 201 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).
660 Personal injuries -- Multiple injuries
6 [660]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Global approach or component approachSummary :
The plaintiff, Mukhtiar Singh, aged 21 at the material time and an aircraft technician with the Republic of Singapore Air Force ('the RSAF') was a pillion rider on a motor cycle ridden by his brother-in-law ('the defendant') at about 4.30pm on 25 January 1987. The motor cycle was travelling, at the material time, on the right-most lane of Lornie Road towards the direction of Thomson Road. It was said that the estimated speed of the motor cycle at the relevant time was 50 kmph. When the motor cycle was making its way thus, an unknown motorist came from behind, overtook him on his left and cut into the path of the motor cycle about 20 feet in front. The defendant, who was at that time under the influence of alcoholic drinks, panicked, lost his nerve and swerved. To the misery of both riders, the defendant hit the road divider to his immediate right, resulting in both the plaintiff and the defendant being thrown off the motor cycle. In the event, the plaintiff suffered injuries open grade III fracture of the upper one-third of the right humerus; cut right brachial artery and cut musculocutaneous nerve. The defendant was charged subsequently in the subordinate courts for driving whilst under the influence of drinks to such an extent as to be incapable of having proper control of the vehicle. He pleaded guilty to that charge and was accordingly convicted. At this trial too, he admitted that he was under the influence of alcohol at the material time. On the question of liability, the only issue was whether the accident was caused solely by the negligence of the defendant or that of the unknown motorist, or if both of them were negligent, how the liability should be apportioned between them.
Holding :
Held
: (1) the defendant was to be blamed for the accident substantially and had to bear 70% of the liability and the remaining 30% was to be borne by the unknown motorist; (2) or a component approach and award separate amounts for each head of damages, which are then totalled and matched against a global award; (3) which approach was to be followed in each case had to necessarily depend on the facts of the case, bearing in mind the need to avoid overlapping. When the injuries sustained were related to the same part or function of the body, there should only be one award of damages, without any risk of overlapping: where the injuries sustained were to different parts of the body and affect different functions, as in the instant case where the plaintiff had sustained injuries to the knee and to the spine, it would be appropriate to make a separate award for each head of damages. In such cases, however, care would still have to be taken to avoid a further 'sub-itemizing' of a head of damages or injury; (4) a fair and reasonable global award for the fracture of the humerus with metal plating, and in respect of the amputation of the right thumb and the transplant of the index finger, would be a sum of S$50,000; (5) for scars a sum of S$6,000 was additionally awarded; (6) this problem generally arose in cases where a plaintiff was in employment at the date of the trial. If he was then earning as much as he was earning before the accident and injury (as in the present case), or more, he has no claim for loss of future earnings. If he was earning less than he was earning before the accident (as in Nicholls v National Coal Board), he had a claim for loss of future earnings which is assessed on the ordinary multiplier/multiplicand basis. But he might have a claim, or an additional claim, for loss of earning capacity if he should ever lose his present job; (7) the foundation for loss of future earnings by the plaintiff's counsel was built more upon speculation and possibilities than on probabilities. In the circumstances, it would be inappropriate to award loss of future earnings and the award to be made in this case should be one for loss of earning capacity instead; (8) this was the risk that the plaintiff might be over-compensated as a result of the itemization of the heads of damages. In many accidents, the victim suffered multiple injuries. In assessing damages, a court might either adopt a global approach and award a total amount to cover all injuries and claims;there was a real risk that the vicissitudes of time will, at some point during that long working life of the plaintiff, necessitate the plaintiff to leave the RSAF and find another employer. In such an eventuality since his handicap was permanent, he would have difficulty finding a job that would pay him as well as if he could have complete use of his right hand. His qualification as an aircraft technician cannot now be put to good use. Consequently any future employment he might find, in the event of his contract not being renewed after 1997, was not likely to pay him as well as if he could use that skill as well as his hand. Allowance would also have to be made for the effect of his injury upon his chances of promotion in the RSAF. Taking into consideration all the factors, the court awarded him a lump sum payment of S$76,000 which included an element of S$4,000 for any possible loss of gain from his overseas assignments bearing in mind in this regard that those overseas allowances were meant to cover one's expenses overseas and not intended as additional emoluments. The court also took into account that such assignments were entirely at the discretion of the RSAF and depended upon the needs of the current unit of the serviceman. It had also been observed that the claim for such loss was somewhat in the nature of special damages.Digest :
Mukhtiar Singh v Balwyndarjeet Singh [1993] 3 SLR 741 High Court, Singapore (Rubin JC).
661 Personal injuries -- Multiple injuries
6 [661]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Leg Right femur Fracture 1 cm shortening.Summary :
The second respondent suffered severe injuries and was hospitalized for a total of 133 days and followed by physiotherapy treatment for about two months. She was found on admission to have the following injuries: (a) Abrasion forehead. (b) [1/2] inch laceration right forehead. (c) Abrasion right upper eyebrow region. (d) Abrasion right cheek. (e) Bleeding right nostril. (f) Abrasion chin. (g) 3 inches laceration right knee. (h) 3 inches irregular laceration left knee. (i) Fracture of right femur which on X-ray showed comminuted fracture lower third right femur. The learned trial judge made a global award of RM35,000 for all her injuries, deducted 10% overlapping and awarded RM31,500.
Holding :
Held
: it was clear that the global award was made not purely on the 1 cm shortening of the second respondent's right leg but covered all the other injuries, pain and suffering, the long period of treatment that she had undergone and loss of amenities. Even though the award might be slightly generous, it was not manifestly excessive.Digest :
Lee Eng Beng & Anor v Torairajah & Ors [1987] 1 MLJ 121 Supreme Court, Kuala Lumpur (Salleh Abas LP, Syed Agil Barakbah and Wan Hamzah SCJJ).
662 Personal injuries -- Multiple injuries
6 [662]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Liability admitted Issue on quantum only Multiple injuries Serious injury to bladder and spinal nervous system Injuries to radius, ulna, femur, and impairment of sexual performance General damages assessed at $32,000.Summary :
The plaintiff, aged 23, was single and worked as an attendant in a Municipal Council at the time of the traffic accident. He suffered the following injuries: (i) Gross swelling of the left wrist with a comminuted fracture of the lower end of the left radius and ulna; (ii) dislocation of the left hip; (iii) 8 cm sutured laceration over the left knee with a crack supracondylar fracture of the left femur; (iv) compression fracture of the body of the first lumbar vertebrae. He suffered bladder incontinence and impairment of sexual performance. The court had only to determine the quantum of damages as the defendant admitted liability.
Holding :
Held
: the plaintiff should be awarded general damages for loss of amenities, pain and suffering at RM32,000 and special damages at RM1,050.35.Digest :
Loh Soon Thiam v Othman bin Wahab [1979] 1 MLJ 43 High Court, Penang (Gunn Chit Tuan J).
663 Personal injuries -- Multiple injuries
6 [663]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Method of assessment Personal injuries Victim dying some three years after accident for reasons not connected with accident Method of assessing general damages Death intervening through causes unrelated to accident Proportional reduction of damages Comminuted fracture of tibia and fibula Comminuted central fracture-dislocation of right hip joint Simple fracture-dislocation of left shoulder.Summary :
This was an appeal against the judgment of Kulasekaram J who found the appellant liable in an action for negligence in driving his car to the extent of two-thirds of the total damages assessed at S$25,338. At about 9 pm on 22 December 1960, the appellant was driving along Jalan Besar in the direction of Lavender Street when he collided with one Koh Hock Wah (hereinafter referred to as the deceased), a school teacher aged 52 years, who was then crossing Jalan Besar from left to right in front of him. The deceased suffered severe injuries as a result of this accident but he made good recovery despite some residual disabilities. He subsequently died some three years and seven months later but not for reasons connected in any way with the collision and the respondents accordingly brought this action on behalf of his estate. The deceased was treated as an inpatient at the General Hospital for 3[1/2] months after which he was discharged and he thereafter continued treatment as an out-patient for a little under 7 months. The trial judge awarded S$20,000 as general damages.
Holding :
Held
, allowing the appeal partially: (1) and (iii) loss of future earnings. In this appeal, no question arose under the third head; (2) from the record, it did not appear that either counsel in the court below took the point with a view to showing the principle on which damages under the remaining two heads should be assessed where death intervenes through causes unrelated to the accident at an age far lower than the normal span of life; (3) had the deceased not died before the trial at a far earlier age than the normal life expectation through causes having nothing to do with the injuries sustained in this accident, it would have been difficult to criticise the award of S$20,000 damages under these heads. But he died much earlier and, in the circumstances, both logic and realistic approach demand that damages under these heads should be proportionally reduced, more so in the case of loss of amenities of life than perhaps in the case of pain and suffering; (4) in assessing general damages, there are broadly three heads to be considered, viz: (i) pain and suffering; (ii) loss of amenities of life;the appeal will be partially allowed to the extent that the assessment of general damages at S$20,000 be reduced to S$15,000. The total amount of general and special damages will accordingly be reduced from S$25,338 to S$20,338. As the appellant's liability is only two-thirds of this amount, the judgment which was entered in the sum of S$16,892 for the respondents against the appellant will be altered to one for S$13,559.Digest :
Tan Seng Kim v Koh Suat Eng & Anor [1968] 1 MLJ 286 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Winslow J).
664 Personal injuries -- Multiple injuries
6 [664]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Multiple injuries.Summary :
The plaintiff was knocked down by the defendant's car as he was attempting to cross the Kelang/Kuala Lumpur Federal Highway on a rainy night. Each side of the highway was 45 feet wide with four lanes. There was a centre road divider with a fence of about two to three feet high erected along the divider. This was erected to prevent people from crossing the highway. The defendant had been using this stretch of the highway daily and had never before seen anyone crossing the road there. He first saw the plaintiff when the plaintiff was about eight feet ahead of him in the act of crossing the road. He could not swerve to the right because of the road divider, nor to the left because there were other vehicles. Consequently, the plaintiff was knocked down and suffered multiple injuries.
Holding :
Held
, dismissing the plaintiff's claim: (1) on the facts, the defendant was not liable in any way in causing the accident; (2) but had the plaintiff succeeded in his claim, on a 100% liability on the part of the defendant, the following damages would have been assessed for the plaintiff: Special damages: hospital charges: RM1,030; other expenses: RM143; loss of earnings for the period of one year and two months when he was unable to work: RM2,940; General damages: fracture of right femur: RM5,000; fracture of both tibia and fibula: RM7,500; fracture of superior and inferior ramus: RM6,500; lacerations and abrasions to left forearm, right chest and parietal region: RM2,500. The total assessment for pain and suffering and loss of amenities for the injuries received would come to RM21,500. But since there is overlapping, it is scaled down to RM19,000.Digest :
Soo Wai Seng v Tan Kim Lock [1986] 2 MLJ 61 High Court, Kuala Lumpur (Eusoff Chin J).
665 Personal injuries -- Multiple injuries
6 [665]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Multiple injuries Assessment of quantum based on 100% liability.Summary :
The plaintiff, a carpenter and rider of a motor cycle, sued the defendant, driver of a motor car, for damages arising out of a road accident on the morning of 20 February 1972, when the plaintiff was proceeding from the direction of Kebun Bunga to go to Segambut. At the junction with Jalan Semantan, his motor cycle collided into the motor car driven by the defendant. The junction of Jalan Duta and Jalan Semantan was controlled by robot lights. The plaintiff claimed that as he was approaching the junction the robot lights were green. He was following another motor cycle which was 30 ft ahead. When he was crossing the junction, the defendant's car came from the opposite side and turned to its right and the plaintiff crashed into the left front side of the defendant's car. The plaintiff was admitted for 14 days in the hospital and he sustained the following injuries: (i) laceration of angle of mouth and right cheek, haematoma of right eye; (ii) fracture lower third of the right radius with dislocation of the ulna; (iii) loss of five front teeth and one tooth fractured; (iv) fractured bones at three places mandible, left zygoma (cheek) and middle third of face. The fracture of the right radius had united with slight overlap at the fracture site. There is [1/6] inch shortening of the right arm which is permanent. There is likely to be permanent limitation of the rotation of the right forearm by 20‘ as there had been a dislocation as well as a fracture. The wasting of the right forearm could be improved by physiotherapy. The plaintiff was earning RM600 pm before the accident. He claimed he could not work for two years after the accident. The defendant denied liability. He said he was stopped by a traffic warden, who directed the traffic from the defendant's side to proceed into Jalan Semantan. The defendant felt safe to move ahead when the plaintiff's motor cycle collided into his car.
Holding :
Held
: (1) the defendant was not liable for the accident; (2) however, had the plaintiff succeeded in his claim on a 100% basis, damages would be awarded as follows: (a) Special damages: (i) items (a) to (d) as agreed by the parties RM200 (ii) Pre-trial loss and partial loss of income RM17,200. 3% interest per annum from date of accident to date of trial. (b) General damages for pain and suffering and loss of amenities RM43,100. 6% interest per annum from date of service of writ to date of trial; (3) where the robot lights at a road junction are functioning, a policeman's (or traffic warden's) direction overrides the direction given by the lights.Digest :
Muniandy & Anor v Mohamed bin Abdul Ghani [1986] 1 MLJ 341 High Court, Kuala Lumpur (Eusoff Chin J).
666 Personal injuries -- Multiple injuries
6 [666]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Multiple injuries Pain and suffering Loss of amenities General damages Assessment.Summary :
In this case, the plaintiff, aged 19 at the time of accident, claimed against the defendant damages for personal injuries and loss suffered by her as a result of a road accident on 25 August 1976 when a car driven by the defendant collided with her and knocked her down while she was standing on the grass verge of the road. The defendant admitted full liability for negligence and the sum of RM92 for special damages. The only question for determination is on the quantum of general damages for pain and suffering and loss of amenities. The plaintiff sustained the following injuries: (i) fracture shaft of left humerus; (ii) scalp laceration; (iii) fractures of transverse processes and compression fractures of third and fourth lumbar vertebrae; (iv) fracture of the right mandible; and (v) intraperitoneal bleeding from arterial bleeding in a liver laceration. She was hospitalized for 40 days, from 25 August 1976 to 4 October 1976, and she underwent outpatient treatment periodically on 17 occasions over a period of 3[1/2]months.
Holding :
Held
, allowing the plaintiff's claim: (1) the total sum of RM25,000 as damages with interest at 6% per annum from date of service of writ to date of judgment, and costs, under the following heads: (a) scalp laceration RM500. (b) fracture of left humerus RM4,000. (c) fractures of transverse processes and compression fractures of third and fourth lumbar vertebrae RM18,000. (d) fracture of right mandible RM6,000. (e) liver laceration RM5,000. From the above total sum of RM33,500, a sum of RM8,500 was deducted for overlapping, giving a net figure of RM25,000; (2) a sum of RM92 was awarded as special damages with interest at 3% per annum from date of accident to judgment; (3) general and special damages will carry statutory interest at 8% per annum from date of judgment to date of payment.Digest :
Lau Ee Ee v Tang King Kwong [1986] 1 MLJ 308 High Court, Sibu (Chong Yik Liong J).
667 Personal injuries -- Multiple injuries
6 [667]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Multiple injuries and [3/4]" shortening.Summary :
The plaintiff, aged 33, was a bus conductor. He did vegetable gardening during his free hours. As a result of the accident while riding pillion on a motor cycle, he suffered the following injuries: (i) Cerebral concussion (ii) 3[1/2] inches laceration over eyelid (iii) compound fracture of right tibia and fibula (iv) [3/4] inch shortening of the right leg. At the right ankle dorsiflexion was limited to 15% (normal range 45%) and plantarflexion was limited to 25% (normal range 50%). He would likely suffer osteoarthritis in the ensuing years. The plaintiff would also have difficulties in squatting, climbing, lifting of heavy loads, etc.
Holding :
Held
: he should be awarded general damages in the sum of RM13,000 for pain and suffering and RM12,000 for loss of future earnings at a purchase of 14 years of about RM100 a month.Digest :
Kamaruddin v Maris Pillai & Anor [1978] 2 MLJ 40 High Court, Kuala Lumpur (Abdul Hamid J).
668 Personal injuries -- Multiple injuries
6 [668]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Negligence Admissibility of plea of guilty on a charge of negligent driving in subsequent civil proceedings Person instructing learner to drive a car Whether both are jointly drivers of the car Liability of owner of car who lends the car for reward with the knowledge that car is to be used for teaching a third party to drive.Summary :
The plaintiff was awarded the sum of RM2,000 general damages and RM351.70 special damages, together with the costs of the action.
Digest :
Long v Wong Chiu Wah & Ors [1957] MLJ 163 High Court, Penang (Rigby J).
669 Personal injuries -- Multiple injuries
6 [669]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Pain and suffering and loss of amenities Loss of earnings Loss of earning capacity Duty to mitigateSummary :
The plaintiff was employed by the defendant as a labourer. On 7 September 1982, the plaintiff was involved in an accident while handling the wire-rope of a crane mounted on a barge on a river. The plaintiff claimed that when the crane's engine was started, the boom suddenly swayed towards him and struck him on his legs. He suffered (i) a punctured wound on the lower left thigh; (ii) a deep lacerated wound over the right leg; (iii) fracture of the lower right tibia; (iv) fracture of the fourth and fifth metatarsal bone of the left foot; and (v) fracture of the medial malleolus on the left foot. There was a 2cm shortening of the right leg, the right leg was slightly bent and the last two toes of the left foot could not be straightened. The plaintiff claimed damages for pain, suffering and loss of earnings. The defendant pleaded the defence of inevitable accident and, alternatively, volenti non fit injuria.
Holding :
Held
, allowing the plaintiff's claim: (1) in their defence, the defendants pleaded that the plaintiff meddled with the crane contrary to instructions. However, the defence witnesses testified that the plaintiff did nothing but place his hands on the boom. This deviation of evidence was of material significance where the evidence of the parties were in sharp contrast. In addition, the defendants had not specifically denied, in their pleadings, the plaintiff's allegation that he was handling the wire-rope when the engine was started. In consequence, the court accepted the plaintiff's testimony on this point; (2) however, the plaintiff failed to prove on a balance of probabilities that the engine was started, causing the boom to sway. The court, however, accepted that the boom was allowed to rest on an empty oil drum when not in use and found that there was no evidence to show that the boom was secured in any way when at rest; (3) at common law, the duty of an employer towards his employees was to take reasonable care for their safety in all the circumstances of the case so as not to expose them to an unnecessary risk. The standard of care which the law demands was the care which an ordinary prudent employer would take. In each case the nature of the employment had to be considered, and in measuring due care, it was necessary to balance the risk against the measures necessary to eliminate the risk. Where the employer was a company, it was liable for the negligence of its servants towards a fellow servant where the negligence occurred in the course of his employment; (4) given that the Rejang was a busy river, the risk that waves brought about by passing motor vessels might cause the boom of the crane to fall was reasonably foreseeable. There had been a breach on the part of the defendant as employer to exercise reasonable care for the safety of the plaintiff as its employee which had materially contributed to the plaintiff's injuries; (5) the burden of proof of inevitable accident was on the defendants and they had failed to show that the fall of the boom caused by the waves was inevitable; (6) as for the plea of volenti, the defendants had to show that the plaintiff fully appreciated the dangerous nature of the work and risks involved and acted as a volunteer in the strictest sense. At the time of the accident, the plaintiff had been in the defendants' employ for only 12 days. There was no evidence that he understood and appreciated the risk and danger of his work nor that he volunteered in carrying out the work; (7) the defence asked the court to consider the question of contributory negligence, but as this had not been pleaded, it was not available to the defendants; (8) there would be an award of $20,000 for pain and suffering; (9) the plaintiff had failed to show that he was unable to work till the date of the trial. He was in a position to resume work between January and April 1986. There was a duty on the part of the plaintiff to mitigate loss and as it was not possible to state with certainty when the plaintiff could resume work, a middle course would be adopted and August 1985 be taken as the time when the plaintiff could begin work. Accordingly, loss of earnings would be calculated from the date of the accident to 6 August 1985 and a sum of $14,000 be awarded; (10) as the plaintiff could resume work, this was not an appropriate case to award loss of future earnings. However, the plaintiff had suffered a loss of earning capacity and was entitled to an award of general damages for disability suffered. The plaintiff was 37 years old in 1985 and taking 55 as the retirement age and allowing 1/3 from this for contingencies of life, the years of purchase would be fixed at 12. A figure of $21,500 was therefore awarded as loss of earning capacity. But there would be no interest on this award.Digest :
Ting Jie Hoo v Lian Soon Hing Shipping Co [1990] 2 MLJ 56 High Court, Sibu (Chong Siew Fai J).
670 Personal injuries -- Multiple injuries
6 [670]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Paralysis Damages for pain and suffering Determining the appropriate multiplicand and multiplier CPF contributions to be taken into accountSummary :
On 12 May 1987, the plaintiff, aged 71/2, was standing at the side of the car park of Block 17, Ghim Moh Road when a motor vehicle driven by the defendant collided into him. As a result of the accident, the plaintiff suffered severe injuries and irreparable brain damage.Liability was admitted and interlocutory judgment was entered on 14 June 1991 against the defendant with damages to be assessed. On 28 April 1992,the learned assistant registrar awarded damages in the sum of S$945,401.34 with interest thereon at S$23,128.80. The defendant appealed against the award of pain and suffering and loss of amenities in the sum of S$160,000, loss of future earnings in the sum of S$140,000 and future nursing care in the sum of S$480,600.
Holding :
Held
: (1) the long-established principle both in England and in Singapore was that the appeal court would only interfere with an award of damages when it was convinced either that the trial judge acted upon some wrong principle of law or, secondly, that the amount awarded was so manifestly high or low as to have been a wholly erroneous estimate of the damage; (2) the award for the head of damage called pain and suffering compensates victims for the pain they endure, the distress of knowing their disablement and the loss of enjoyment of life generally. The victim's awareness of pain and distress was a major factor to be taken into account; (3) having regard to all the medical evidence in the present case, the award of S$160,000 for pain and suffering and loss of amenities was not excessive; (4) the burden of proving that it was reasonable for the plaintiff to be cared for at home was on the plaintiff; (5) as the plaintiff would be looked after by his parents until such time as they were not able to do so, and for him to be looked after in a private nursing home when his parents were unable to care for him, the award of S$480,600 was reduced to S$162,000; (6) the plaintiff's academic abilities based on primary one results was not a reliable guide as to what the plaintiff's achievements at 'O' or 'A' levels would have been if he had not met with the accident. It was possible for the plaintiff to obtain a university education or to drop out from school. That was really a matter for speculation; (7) in arriving at the multiplicand, the mean commencing salaries of all occupations for young workers and not the average monthly earnings of a Singaporean for all occupations had to be used as the latter takes into account the salaries of those employees nearing retirement age; (8) the average commencing wage for all occupations works out to S$783.85 and rounding it upwards, a fair and reasonable multiplicand was reached; (9) a multiplier of nine years was fair and reasonable; (10) CPF contributions, which have long been accepted as a factor to be taken into account in determining losses, were allowed at 20%.Digest :
Toon Chee Meng Eddie v Yeap Chin Hon [1993] 2 SLR 536 High Court, Singapore (Goh Phai Cheng JC).
671 Personal injuries -- Multiple injuries
6 [671]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Permanant incapacity and need for specialized care Rehabilitation Conflicting medical advice as to benefit of further rehabilitation Claim for expenses incurredSummary :
The plaintiff brought an action for damages for loss and pain and suffering following a collision on the highway involving the motorcycle on which she was a pillion passenger and the defendant's car. The initial question for the court went to liability for the accident and whether liability should be apportioned between the driver of the car and the rider of the motorcycle. Independent eye witnesses gave evidence to the effect that the car turned across the path of the two oncoming motorcycles when they were very close to it. The motorcycles did not appear to be speeding and had their headlights on at the time of the accident. There were two separate collisions within seconds of each other as the two motorcycles were unable to avoid hitting the car. As a result of the impact, the plaintiff suffered a subdural haematoma with a marked shift of the midline and a fracture of the lower end of the fibula. The defendant argued that the plaintiff should not be able to recover, regardless of any apportionment of liability for the accident on the basis that a cause of action could not be founded on an illegal act.
Holding :
Held
, finding the defendant wholly responsible for the accident and awarding the plaintiff general and special damages: (1) the impact occurred when the vehicle driven by the defendant crossed the opposite lane on the highway. In these circumstances, it was incumbent on the driver to show that he had a right to be there. The oncoming motorcycles had priority, which was not an absolute right and may be lost in certain circumstances, such as if the motorcycles were speeding or if visibility were limited; (2) on the evidence, the motorcycles may have been travelling up to about 100kph. However, this did not of itself absolve the driver from any duty of care; (3) the fact that the driver may have indicated his intention to turn does not absolve him from a duty of care as it does not confer upon the maker of the signal any right which he does not have (Dawrant v Nutt [1960] 3 All ER 681); (4) the motorcycles had right of way and were entitled to assume that their path would not be blocked by any vehicle crossing their path. The driver had a duty to ensure that it was safe to turn across the highway before he did so; (5) the driver misjudged the speed and distance of the oncoming motorcycles when he attempted to turn in front of them. Tan Kheng Kuan v Lim Chen Teik [1965] 1 MLJ 116 noted that it is a grave fault in motor driving to cross the vehicle across the general route of traffic without first seeing that there is a clear passage. The defendant was under a duty, being the car that was turning across the path of an oncoming vehicle, to allow it to pass before turning (Tiong Ing Chiong v Vaneiti [1984] 2 MLJ 170); (6) there was no evidence that the motorcycles were ridden at excessive speed or that the speed of the motorcycles in any way contributed to the accident and, therefore, the defendant was wholly responsible for the accident; (7) the argument that no action can be founded on the basis of an illegal act can be accepted as applicable only with modification to motor vehicle accidents. There are many instances of awards of damages made to a person who is guilty of a motoring offence. The cases cited by the defence deprived the plaintiff of damages where they knew of the illegal act of the driver and were presumed to have assented to it and any consequences which might arise. It was for the defence to establish that the plaintiff knew that the rider of the motorcycle on which she was travelling had no road licence or insurance. It was for the defence to show that by virtue of the maxim ex turpi causa oritur actio that the plaintiff was not entitled to recover, which they have failed to do. There must be some evidence that the passenger knew of the illegal act and consented to it. There was no evidence of any such knowledge. The fact that the driver had no licence will not relieve the defendant of his duty of care which he owed to others; (8) she would most probably never marry or have children. Medical opinion noted rehabilitation may improve her daily living skills but she would always require supervision. Her severe brain injury must be taken into account when judging her present capacity; (9) medical evidence as to her potential for progress through rehabilitation conflicted. It would be reasonable for the plaintiff to be given the opportunity to undergo the programme recommended; (10) in relation to the claims for expenses incurred, the defendant was only obliged to pay for such expenses as were reasonable and attributable to the accident and not every expense that had been incurred. If the plaintiff's mother had medical justification for the expenses, this would suffice; (11) the plaintiff was 18 at the time of the accident and was a full-time student. Her injuries required immediate surgery and further surgery four days later to remove an intercerebral haematoma. She was evacuated to Singapore for further care and four months later was discharged and returned to Brunei. Rehabilitation was advised in Australia as the facilities were not available in Brunei. Her condition was assessed as requiring a specialized carer as she would never be able to live independently; she would need 16 hours specialized care and eight hours non-specialized care each day; she required a walking frame; her life span was the same although she may suffer obesity or epilepsy; she was not employable as she could not concentrate, perform tasks, had poor social skills and was easily distracted;special damages were assessed at B$62,760. General damages were assessed at B$748,610 under the following heads: domestic helper B$172,400; future medical expenses B$179,520; loss of earning capacity B$190,080; renewal of equipment B$3,850; pain and suffering and loss of amenities B$140,000.Digest :
Keasberry v Emran bin Haji Abdul Rahman Civil Suit No 56 of 1994 High Court, Brunei (Roberts CJ).
672 Personal injuries -- Multiple injuries
6 [672]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Personal injuries Absolute liability conceded Assessment of general damages.Summary :
The plaintiff who was a passenger in a motor car which was involved in an accident, suffered various injuries. The defendants conceded absolute liability. The parties agreed on special damages in the sum of RM750. The only issue before the court was the amount of general damages to be awarded. The learned judge found it proper and helpful to divide the injuries sustained into four categories in assessing general damages in this case. General damages were assessed at RM10,000. In arriving at this figure, all relevant factors were taken into consideration including the age of the plaintiff, the fact that she was a married woman and that there was no loss of future earnings.
Digest :
Zaharah v Hong Kin Wong & Anor [1972] 1 MLJ 29 High Court, Kuala Lumpur (Mohamed Azmi J).
673 Personal injuries -- Multiple injuries
6 [673]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Multiple injuries Pre-trial and future loss of earnings Multiplier and multiplicand Mitigation of lossSummary :
The plaintiff, a motor cyclist, was knocked down by a bus driven by the first defendant on 13 January 1990 along New Bridge Road. Liability was agreed at 90% to the defendant and 10% to the plaintiff. At the time of the accident, the plaintiff was a sub-contractor cum welder. He suffered the following injuries: (i) cervical cord contusion with sensory level C5 tetraparesis and neurogenic bladder and bowel; (ii) fracture of the right first rib; (iii) open fracture of the right tibia and fibula where an open reduction and fixation was done; (iv) laceration of the liver laparotomy drainage and suture was done; and (v) stable closed head injury with cerebral oedema treated conservatively. The plaintiff was left with the following residual disabilities: (a) drop foot affecting his right foot; (b) spastic lower limbs which impeded walking normally without the aid of bilateral elbow crutches; (c) neurogenic bladder and bowel; (d) paralysed, functionless hands; and (e) dexterity with his bare hands were not possible for a pincer grip.
Holding :
Held
: (1) a plaintiff had a duty to mitigate his loss. If the plaintiff failed to do what he could reasonably have done to minimize his loss, damages had to be assessed on the basis of the loss he would have suffered had he taken those reasonable steps. Reasonable expense such as fees paid for training to mitigate could be recovered as damages even if, in fact, no mitigation was achieved; (2) the burden was on the defendant to show that plaintiff had failed to mitigate when in the circumstances it was reasonable to do so; (3) in so far as calculation of damages is concerned, the deduction made by the plaintiff's counsel for expenses which has taken into account the tax element was allowed; (4) it was agreed that the multiplier should be 15; (5) pre-trial loss was assessed not just on the basis of what the plaintiff was earning at the date of accident but on the basis of what he could have earned between the accident and trial. Any increases of earnings would have to be taken into account as would increases of the expenses; (6) the plaintiff was entitled to expect the court to look into the future and project the future financial losses he would suffer in consequence of the injury; (7) the following awards were made: (a) S$85,000 as general damages for pain and suffering; (b) S$8,227.24 as agreed special damages; (c) pre-trial loss of earnings at S$1,200 per month from 13 January 1990 to 10 July 1992; (d) future loss of earnings at S$1,400 ΄ 12 ΄ 15; (e) interest on pre-trial loss at 3% from the date of the accident to date of judgment; (f) interest on special damages at 6% from date of writ to date of trial; (g) interest on general damages at 8% from the date the defence was filed to date of trial.Digest :
Sim Ban Kiat v Teo Sing Keng & Anor [1993] 2 SLR 155 High Court, Singapore (KS Rajah JC).
674 Personal injuries -- Negligence
6 [674]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Negligence Failure to provide reasonably safe system of work Fall from coconut tree Volenti non fit injuria Damages.Summary :
The learned President of the Sessions Court found that the appellant was negligent in that he failed to provide a reasonably safe system of work and he awarded general damages of RM6,500. The appeal against his judgment was dismissed.
Digest :
Kanagasabapathy v Narsingam [1979] 2 MLJ 68 High Court, Kuala Lumpur (KC Vohrah J).
675 Personal injuries -- Pain and suffering
6 [675]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pain and suffering Loss of amenities Loss of expectation of life Compensation for loss of marriage prospectsSummary :
The plaintiff was an employee of Kwong Tuck Loong Pte Ltd, a family concern, earning S$1,900 per month at the time of the accident. The first defendant was the servant and agent of the second defendant. The plaintiff sustained injuries when the first defendant negligently drove motor trailer XA 5080X and collided into the rear of the car EP 8247J on 23 August 1990. The plaintiff was severely disabled due to motor paralysis in all four limbs with only partial but functionally inadequate recovery in the upper limbs. His health would be affected by urinary tract infections, bedsores and chest infections and he would be prone to urinary and kidney infections. There was a strong possibility of further deterioration. His medical condition was unlikely to improve and he had no future earning capacity. The plaintiff claimed damages for his personal injuries, consequential loss and expenses suffered by him, caused by the negligence of the first defendant.
Holding :
Held
, allowing 70% of the plaintiff's claim: (1) the term 'pain and suffering' was used as a term of art, without any clear distinction between the two words, but the compensation was paid for the physical pain, emotional and intellectual suffering arising from the injury. Shock was included as were anxiety and fear. The starting point for evaluating pain and suffering had to be the injury itself, which included fright at the time of the injury and fright reaction. Precaution, however, had to be taken against the overlapping of elements of damages; (2) s 8 of the Civil Law Act (Cap 43) abolished loss of expectation of life as a separate head of non-pecuniary loss in an action for damages for personal injuries in claims by the estate, and not for claims by a living plaintiff. The estate should not receive compensation meant for a living plaintiff; (3) the sum of S$145,000 for pain and suffering for the injuries suffered by the plaintiff was by no means out of tune with the damages awarded for the injuries suffered by the plaintiff. If the sum of S$145,000 was to include the award for loss of expectation of life it should have been spelt out when the parties agreed on the figure of S$145,000 so that the plaintiff could be said to have made an informed decision when he agreed to S$145,000 for pain and suffering for it to be said that the plaintiff took into account the suffering that was increased by his knowledge that his life expectation had been reduced. There would be an award of S$6,500 to the plaintiff for loss of expectation of life; (4) the plaintiff's physical and medical problems would not permit the plaintiff to lead a normal sex life. The plaintiff had to be given fair compensation for his loss of marriage prospects. The plaintiff should be compensated for the loss of the comfort of a wife made remote by his injuries. The plaintiff's parents were elderly and his brothers and sisters would, no doubt in the course of time, marry, and have their own families. There was every prospect of the plaintiff living alone. The plaintiff's claim for S$7,000 under this head, however, was not supported by any authorities. There would be an award of S$2,500 for loss of marriage prospects; (5) pain and suffering and loss of amenities were usually quantified together and a single award was usually made without indicating how much was awarded under each head, partly because it was difficult to separate them. Damages for loss of amenities or reduced enjoyment of life could be general or specific. Pain and suffering and loss of amenities were compensated as financial losses but could not possibly be calculated. It was evaluated by reference to prior awards, but was not limited to comparison with prior awards, but also to experience and intuition. The court looked at the particular plaintiff and the circumstances of each case and the evidence to see how the quality of life had been diminished on a case by case basis; (6) the pre-trial loss of earnings must be calculated as at the date of the trial. A fair award for pre-trial loss of earnings would be S$63,681.75; (7) on the facts, using the multiplier 9 or 15 would not be fair or in accordance with the decided cases and the facts of this case. The multiplier should be 13.5 years' purchase; (8) a multiplicand of S$3,000 would be fair compensation; (9) the multiplier represented the number of years for which the plaintiff was to be awarded damages. The multiplier was not for a real number of years. The basis on which the loss of earnings was calculated for future loss of earnings was based on the working life. A claim for the lost years was allowed; (10) on the facts of this case, the multiplier for loss of future earnings and for nursing care could not be the same having regard to the plaintiff's age, substantial reduction of his expectation of life, the medical evidence and the damages which took in the lost years when his expectation of life on the medical evidence had been shortened by 10 to 15 years. The multiplier for post-trial nursing will be 12; (11) the multiplicand for nursing care would be S$550 per month; (12) the deduction for living expenses would be for S$500 per month ΄ 12 x 12 = S$72,000, since the multiplier must reflect the period the plaintiff would incur living expenses and not the period of his working life which ignored his lost years for other reasons.Digest :
Au Yeong Wing Loong v Chew Hai Ban & Anor t/a Kian Heng Hiring Equipments Co [1993] 3 SLR 355 High Court, Singapore (KS Rajah JC).
676 Personal injuries -- Pain and suffering
6 [676]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pain and suffering Special damagesDigest :
Rajinder Singh s/o Balwang Singh v Koay Teong Chooi Suit No 23-35-89 High Court, Penang (KC Vohrah J).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 554.677 Personal injuries -- Pain and suffering
6 [677]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pain and suffering Subjective element Damages for personal injuries caused by negligence Duty of care Volenti non fit injuria Contributory negligence Quantum of damages.Summary :
In this case, the plaintiff was a passenger in a car driven by the defendant from Port Swettenham to Klang. It appeared that the car was driven at high speed and that the plaintiff warned the defendant to slow down and to be careful as he thought that the defendant was going too fast for the safety of the public on the road. The car collided with a cyclist, the defendant lost control of his car and the accident took place as a result of which the plaintiff sustained the injuries. The plaintiff sued for damages. At the trial liability was denied and it was pleaded: (i) that in the circumstances the defendant owed no duty of care to the plaintiff; (ii) the maxim volenti non fit injuria applied; and (iii) that the plaintiff was guilty of contributory negligence. The learned trial judge held that: (a) the defendant owed a duty of care to the plaintiff; (b) on the facts, the defence of volenti non fit injuria did not apply; (c) the plaintiff was not guilty of contributory negligence; and he awarded damages including an assessment of general damages at RM35,000 to the plaintiff. An appeal was filed against the assessment of general damages.
Holding :
Held
: there was no ground for interfering with the finding of the trial judge as to the assessment of damages and therefore the appeal must be dismissed. So far as concerns such questions as pain and suffering, any assessment of damages must contain a very subjective element. A very large part of the assessment must be played by the personal opinion of the trial judge.Digest :
IB Drennan v RF Greer [1957] MLJ 77 Court of Appeal, Kuala Lumpur (Thomson CJ, Abdul Hamid and Neal JJ).
678 Personal injuries -- Pain and suffering
6 [678]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pain and suffering Temporary loss of amenity Personal injuries arising from professional negligence Injuries of a transient character Pain and suffering and temporary loss of amenities Compensation.Summary :
In this case, the appellant performed an operation on the respondent's foot, but instead of improving the foot the operation made it worse. She found that after the operation any side or upward movement of the foot caused her intense pain. There was loss of sensation in one part of her foot whilst other parts were very tender; her ankle used to swell and she limped and was unable to walk properly. After enduring this condition for four months, she consulted another doctor and was advised by him to submit to another operation. This was performed and when the foot was opened up, it was discovered that the sural nerve had been severed at the first operation and used for some form of fixation of the ankle. The damaged nerve was joined and a tendon transplantation carried out ad modum Watson-Jones. The second operation was successful and in the opinion of the doctor who performed it, the respondent should not then suffer any permanent disability as a result of the first operation. In the court below she was awarded damages of S$8,481.50, being S$981.50 as special damages and S$7,500 as general damages. The appellant admitted liability and the only issue appealed against was the award of S$7,500 as general damages.
Holding :
Held
: (1) in this case, the compensation to be awarded to the respondent should be limited to pain and suffering and to some temporary loss of amenities following upon the first operation; (2) it is essential that some reasonable relationship should be maintained between damages awarded for grave injuries of a permanent kind and relatively slight injuries of a transient character such as sustained by the respondent in this case; (3) in the circumstances, the sum of S$7,500 awarded for general damages in this case should be reduced to S$4,000.Digest :
Loughran v Armstrong [1956] MLJ 137 Court of Appeal, Singapore (Whyatt CJ, Taylor and Tan Ah Tah JJ).
679 Personal injuries -- Pain and suffering and loss of amenities 0
6 [679]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pain and suffering and loss of amenities 0Digest :
Wong Chin Yong (as next friend of the Infant William Wong Li Fatt) v Haidawati bte Bolhen & Anor Suit No KG 36 of 1989 High Court, Kuching (Richard Malanjum J).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 446.680 Personal injuries -- Paraplegia
6 [680]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Paraplegia Plaintiff hit by soya bean bags in godown Unsafe platforms used for loading Plaintiff became paraplegic No contributory negligence Quantum of damagesSee tort, para I [83].
Digest :
Fernandez Mary John v Port of Singapore Authority & Ors Suit No 1044 of 1991High Court, Singapore (Choo Han Teck JC).
681 Personal injuries -- Partial disability
6 [681]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Partial disability Negligence Quantum Special and general damages Prospective pecuniary loss Fracture of coccyx Housewife Partial disability.Summary :
The plaintiff sustained injuries in a motor car accident and claimed RM30,000 as general damages. The plaintiff was a housewife with seven children. As a result of the accident she was unable to continue to do housework and had to engage servants to help her in the household duties.
Holding :
Held
: in assessing general damages in such cases, there are three elements to be considered; (a) pain and suffering; (b) loss of enjoyment of life; and (c) prospective pecuniary loss; in the circumstances of this case, the plaintiff would be awarded RM18,000 as general damages.Digest :
Raja Zam Zam v Vaithiyanathan [1965] 2 MLJ 252 High Court, Kuala Lumpur (Raja Azlan Shah J).
682 Personal injuries -- Past and future loss of earnings
6 [682]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Past and future loss of earnings Past and future loss of earnings.Summary :
In this case, the respondent brought an action against the appellant for damages for negligent driving arising out of a collision between a motor cycle driven by the respondent and a motor car driven by the appellant, as a result of which the respondent was badly injured. The trial judge gave judgment for the respondent and awarded him total damages of B$1,300,792 with interest. The apppellant appealed to the Court of Appeal, which dismissed both the appellant's appeal on liability and the respondent's cross-appeal on damages, but allowed in part the appellant's appeal on damages by reducing substantially the sum awarded for past loss of earnings. The appellant appealed and the respondent cross-appealed from the order of the Court of Appeal to the Privy Council. The appeal was limited to two issues only, first the amount of damages awarded for past loss of earnings, and secondly the award for loss of future earnings, the appellant contending that both sums were too high and the respondent that they were too low. In regard to the damages for loss of future earnings, the multiplicand of B$72,000 adopted by the trial judge and accepted by the Court of Appeal was attacked by the appellant as being too high. The multiplier of 13 adopted by the trial judge and accepted by the Court of Appeal was attacked by the respondent on the ground that it was too low and by the appellant on the ground that it was too high.
Holding :
Held
: (1) the submissions made by the respondent and by the appellant in regard to the damages for past earnings should be rejected; (2) despite the contentions advanced on both sides, the figure of B$936,000 as damages for loss of future earnings has not been shown to be wrong and should stand; (3) the question of what is a proper amount to award for damages in this case involved no question or principle of law. There were concurrent findings of fact on this issue by both the trial judge and the Court of Appeal and it is not the practice of the Board, save in exceptional circumstances, to interfere with such findings. There was no such exceptional circumstances in the case.Digest :
Tiong Ing Chiong v Giovanni Vinetti [1984] 2 MLJ 169 Privy Council Appeal from Brunei (Lord Keith of Kinkel, Lord Elwyn-Jones, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Sir Robin Cooke).
683 Personal injuries -- Pelvic bones
6 [683]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pelvic bones Fracture of Rupture urethra Plaintiff 27 year old cook Plaintiff driving motor cycle First defendant driver of motor lorry hit motor cycle's rear First defendant wholly to blame for accident Award of damagesSummary :
The plaintiff's claim was for damages for personal injuries and consequential losses suffered by him as a result of a road traffic accident in which his motor cycle was knocked from the rear by the first defendant's motor lorry and fell under the lorry. The plaintiff, who was a 27 year-old cook, sustained fractured pelvic bones and a ruptured urethra.
Holding :
Held,
allowing the claim: (1) in the absence of the evidence of the driver of the motor lorry or any of the witness for the defendants and having regard to the evidence of the plaintiff which was consistent with his police report, the evidence of the investigation officer, the sketch plan and key, the inescapable conclusion was that the motor lorry had knocked into the plaintiff's motor lorry. The driver of the motor lorry, the first defendant, was wholly to be blamed for the accident and is therefore 100% liable; (2) the general damages for pain and suffering to be awarded was RM30,000 for both injuries and the general damages for loss of future earnings (post-trial loss) was RM37,700.Digest :
Anthony a/l Arokyasamy Seemome v Mohamad Zailani Abdul Rahman & Anor Guaman Sivil No 23-241 of 1993High Court, Johore Bahru (Haidar J).
684 Personal injuries -- Pelvis fracture
6 [684]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pelvis fracture Hip dislocation Interest on damages Hip bone Dislocation Pelvic bone Fracture Running-down action Interest on damages Civil Law Ordinance 1956, s 11.Summary :
In this running-down case, the court found that the defendant was negligent in two respects: (i) failing to keep a proper lookout in attempting to negotiate the bend; (ii) being suddenly deprived of proper control of his vehicle by some defect suddenly manifesting itself in the vehicle, resulting in the collision. The plaintiff was found to have contributed to his own injury to the extent of 25%. The plaintiff sustained a dislocation of the hip joint and this dislocation was complicated by a fracture of the pelvic bone which forms part of the hip joint. An open reduction was undertaken, that is, the wound was opened by cutting through the muscles and setting the bone. The fractured fragments had to be screwed to the pelvic bone in order to hold the dislocated bone in position. The plaintiff was hospitalized for 2 months and 12 days. The orthopaedic surgeon examined him again on the morning of the trial and stated that his post-operative recovery was normal and satisfactory and that he had been fortunate to recover the use of his hip. He estimated the extent of disablement to be about 20%. As to the period of time during which a person with such injuries would be unable to work, he stated that this depended on response to treatment of the individual concerned, but four to five months could be taken as the average period. This would be followed by about two months of light work. He further stated that osteoarthritis could be expected to develop at the site of the injuries in about four or five years' time and could affect his working capacity. It was in evidence that the plaintiff was earning an average of RM300 per month at the time of the accident.
Holding :
Held
: in view of the dislocation which was complicated by the fracture and which in turn necessitated an open reduction and the probability that osteoarthritis would set in in later years, a sum of RM6,000 should be awarded as general damages. As to loss of earnings, a sum of RM1,500 should be allowed at the rate of RM300 per month for five months. Observations on whether interest should be awarded on damages in respect of personal injuries caused in a motor accident.Digest :
Yee Boon Heng v Tan Chwee [1967] 2 MLJ 157 High Court, Raub (Raja Azlan Shah J).
685 Personal injuries -- Pelvis fracture
6 [685]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pelvis fracture Leg shortening Overall figure Personal injuries Pain and suffering in going through operation Multiple fractures Pelvis Thigh bone [3/4]" leg shortening General damages Loss of future earnings.Summary :
In this case, the plaintiff was severely injured when tractors belonging to the first defendant were negligently set in motion while the plaintiff was attempting to detach a wire rope attached to them. Liability was admitted and the only dispute was as to quantum of damages. The plaintiff was severely injured and when he was admitted into hospital he was found to be in great pain and distress as he had a ruptured bladder and could not discharge his urine. To save his life, a laparectomy operation was immediately performed. He underwent treatment for nearly four months and thereafter was treated as an outpatient. He had multiple fractures of the pelvis, including fractures of the left socket and neck of the thighbone and the body of the left pubic bone. His left leg was shortened by [3/4] inch, there was a complete stiffness of his left hip and restriction of his hip joint movements and these had resulted in the plaintiff not being able to squat, climb stairs or ladders, or work on uneven ground. Osteoarthritis had set in. These physical disabilities namely the shortening of the left leg and the anchylosis of the left hip would be permanent. At the time of the accident, the plaintiff was 22 years old and was employed as an odd job attendant earning a daily pay of RM4. After he left the hospital, he was able to get various jobs getting about RM75 per month with free food and accommodation.
Holding :
Held
: in assessing damages, the court should give an overall figure. In this case, the plaintiff did not suffer any heavy loss of income but had suffered distress and agony in going through the operation. A substantial sum should therefore be awarded for the uncertainties of the future and for pain and suffering, and all in all, the sum of RM20,000 should be awarded for general damages.Digest :
Wong Ah Fong v Central Lorry Service Co Ltd & Ors [1970] 1 MLJ 208 High Court, Kuala Lumpur (Yong J).
686 Personal injuries -- Pelvis fracture with rupture of urethra
6 [686]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pelvis fracture with rupture of urethra Impotency and sterility Personal injuries Complicated fracture of pelvis with rupture of urethra Likely to remain impotent and sterile Pain and suffering and loss of amenities.Summary :
The plaintiff, a 29-year-old storeman employed by the Telecoms Department, was involved in a traffic accident. The injuries that were found on him were, inter alia, a complicated fracture of the pelvis with a rupture of the urethra and partial tear of the rectum and the caecum. The net results of these injuries were that he was likely to remain impotent and sterile and that even if he was eventually discharged from hospital, there was little likelihood that he could even lead a comparatively normal life, but the doctor was of the opinion that in view of his sedentary occupation and with proper attention and a further operation, he would be able to resume his former job. He would be able to walk with a stiff gait. On the question of liability, the court found both parties were equally to blame for the accident. On the quantum of damages, special damages had been agreed at RM1,691.84 and it had been conceded that there would be no loss of earnings. On the question of general damages,
Holding :
Held
: on a full measure of damages, RM45,000 would be a reasonable award for loss of amenities and pain and suffering. Consequently there was judgment for the plaintiff against the defendant for RM23,345.92.Digest :
Ghulam Hussein v Shaharom & Anor [1966] 1 MLJ xxxiv; [1966] 2 MLJ 207 High Court, Kuala Lumpur (Abdul Aziz J).
687 Personal injuries -- Pelvis fracture with rupture of urethra
6 [687]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pelvis fracture with rupture of urethra Past, present and future suffering Personal injuries Pelvis fracture and ruptured urethra Eight-year-old child Likelihood of being impotent and sterile Past, present and future suffering.Summary :
The first plaintiff, a schoolboy aged eight, claimed damages for personal injuries suffered by him and caused by the negligence of the driver and/or conductor, the servants or agents of the defendants in driving, use and management of a motor bus. On the morning of 13 July 1967, the first plaintiff fell off the said bus while he was boarding it. He suffered: '(i) laceration 4 inches long over lateral aspect of (L) knee and thigh involving skin and sub-cutaneous tissue; (ii) fracture of pelvis with ruptured urethra; (iii) bruises in both groins and perinaeum; (iv) bleeding from urethra evidence of ruptured urethra'. 'X-ray also showed a fracture of the upper part (L) fibula. Patient was catheterized (introduction of tube into urethra) being unable to void any urine. On the same night, his laceration was sutured and because of the loss of blood, he was given blood transfusion. Being unable to pass urine normally, a suprapubic cystostomy was done on 17 July 1967, an opening in the bladder was made through the abdomen and a rubber tube was left in. His left leg and thigh were put in a paster cast for the fracture of the small bone in the left leg.'
Holding :
Held
: (1) whilst the proper basis should be of fair and reasonable compensation for past, present and future pain and suffering, in this case, some consideration might also be given on the basis of a fair and reasonable compensation for some financial expenses which might be incurred in pursuing medical treatment; (2) taking into consideration the injuries suffered and bearing in mind the factors in the case, general damages at RM20,000 would be a fair and reasonable compensation.Digest :
Tan Guan Cheng & Anor v Kuala Lumpur, Klang & Port Swettenham Omnibus Co Ltd [1971] 1 MLJ 49 High Court, Kuala Lumpur (Abdul Hamid J).
688 Personal injuries -- Permanent disabilities
6 [688]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Permanent disabilities Personal injuries Duty of care Contributory negligence Quantum of damages Leg Fracture of femur, tibia and fibula Shortening of leg Knee Stiffness and limited flexion Ankle and foot Limited movement Permanent disabilities Pain and suffering Precedent Malayan and Singapore cases.Summary :
The plaintiff, a 61-year-old Chinese herbist shop proprietor, was injured by the defendant's motor cycle while he was crossing a road. He suffered substantial injuries, some of them of a permanent nature. He suffered considerable pain and suffering. At the trial, liability was denied and it was pleaded that the plaintiff was guilty of contributory negligence. The learned trial judge found that the plaintiff was not guilty of contributory negligence and he awarded damages including an assessment of general damages at S$15,000 to the plaintiff. On appeal against the assessment of general damages,
Holding :
Held
: there was no ground for interfering with the finding of the trial judge as to the assessment of damages and the appeal must be dismissed.Digest :
Ng Heng Teck v Lee Kwek Chuan [1964] MLJ 133 Federal Court, Singapore (Barakbah CJ (Malaya).
689 Personal injuries -- Permanent disabilities
6 [689]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Permanent disabilities Personal injuries Right forearm and wrist Multiple laceration and compound fracture 'Claw hand'Ê Assessment of disability.Summary :
The plaintiff, a 32-year-old ex-tailor, was employed by the defendants as a winch driver of their dredging crane. On 1 February 1967, in the course of his employment, he was ordered by his foreman to remove the bearing counter weight when, as a result of the negligence of the defendants, the piston struck the plaintiff's right forearm in consequence of which he sustained severe injuries to his forearm and wrist. He claimed damages for the injuries suffered. As the defendants admitted liability, the only question before the court was the quantum of damages. The plaintiff suffered multiple lacerations of the right hand and wrist involving the wrist joint. He also suffered a compound fracture of the lower end of the ulna bone and the two main arteries of the hand, the median nerve and flexor muscle were severed. Two of the small bones of the wrist had been detached. As a result of these injuries, the plaintiff had what is called a 'claw hand', ie a hand in which the fingers are in a semi-flexed position. He could use his hand only for coarse work and not for refined movement, eg he could not do any writing because of the difficulty of securing a grip on a pen or pencil. There was also evidence that he would not be able to work as a winch driver any more because the grip of his hand was very weak, but there was possibility for him to do a bit of sewing with a mechanically operated machine although he would not be able to do any cutting unless he trained himself to use his left hand. The doctor assessed disability of his hand at 25%, which he said was worked out on the basis of workmen's compensation.
Holding :
Held
: (1) the assessment of disability on the basis of workmen's compensation had to be re-assessed in relation to whatever occupation the plaintiff engaged himself in, for instance, in this case, as a winch driver the plaintiff's disability would be 100%; (2) taking into consideration his age, the ordinary hazards of life, the pain and suffering which he suffered as a result of the injuries, the impairment and consequently the potential future earning capacity of the plaintiff and the loss of amenities, general damages of RM12,500 was reasonable. This and special damages of RM496.50 were awarded with interest thereon at 6% per annum from the date of judgment to date of satisfaction and taxed costs.Digest :
Abdul Samad v Gammon & Christiani-Nielsen [1962] MLJ cxxiii 394 High Court, Kuala Lumpur (Gill J).
690 Personal injuries -- Phobia
6 [690]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Phobia Damages for Phobia arising from accident Damages for phobias, neuroses and psychic disorders Aggravating factor in award of general damages for main injuries Necessity for medical evidence of phobiaDigest :
Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 3 MLJ 144 High Court, Singapore (Yong Pung How J).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 627.691 Personal injuries -- Post-trial losses
6 [691]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Post-trial losses Conflicting evidence as to possibility of future events happening but for accident Approach of court in making assessmentSummary :
The plaintiff was a commercial diver employed by the defendants. In July 1987, the plaintiff was injured in the course of his employment. As a result he had to give up his occupation as a commercial diver. In July 1993, the High Court found the defendants wholly liable for the loss suffered by the plaintiff and gave judgment for damages to be assessed. At the date of the assessment, the plaintiff was 39 years old. The plaintiff claimed that, but for the accident, he would have worked until he was at least 50 years old and that he would probably have eventually become a diving supervisor. The defendants contended that the retirement age of divers rarely exceeded 40 years and that it was unlikely that the plaintiff would have become a supervisor. The learned assistant registrar accepted the defendants' evidence and found that the plaintiff could never have become a supervisor. She awarded damages to the plaintiff on a multiplier of two years. The plaintiff appealed.
Holding :
Held
, allowing the plaintiff's appeal: (1) the learned assistant registrar had not taken the totality of the evidence into consideration, and had given undue weight to the evidence of the defence witnesses and no or insufficient weight to the evidence of the plaintiff's witnesses. The court was therefore entitled to interfere with the award of damages; (2) on the facts, the learned assistant registrar relied on British statistical studies peculiar to diving conditions in temperate countries, where diving conditions were significantly harder than diving conditions in the warmer climate here. Furthermore, divers working in Britain were able to draw their pension at the age of 40, whereas in Singapore, freelance divers did not have any CPF funds to draw on. This difference would tend to encourage divers in Singapore to carry on working longer; (3) as for the plaintiff's chances of becoming a supervisor, as long as there was a fair possibility, as opposed to a mere fanciful speculation, that an event would have happened but for the intervening injury, that possibility had to be taken into account, with due allowance made for the contrary possibility that the event might not have happened. The assistant registrar's 'all or nothing' approach was erroneous. The assessment in the instant case, therefore, should have been on the basis that, but for the accident, the plaintiff would have had a chance of continuing to dive for a period, then going on to some diving-related occupation, giving due allowance for the possibility of any of these ceasing or not occurring at all for some reason or other. On this basis, a reasonable multiplier was about ten: the first half of this multiplier period would be devoted to diving, while the remaining half would be allowed for working as a supervisor or barge operator, with a discount for the possibility that he might not have made it to be either.Digest :
Soon Pook Seng Arthur v Oceaneering International Sdn Bhd [1995] 3 SLR 531 High Court, Singapore (Warren LH Khoo J).
692 Personal injuries -- Pre-existing disability
6 [692]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pre-existing disability Loss of amenities of life Plaintiff suing owner of vehicle for damages Vehicle driven by son of owner Whether son driving with permission and authority Whether son servant or agent of owner Whether plaintiff entitled to damages. Son driving car belonging to father Whether father liable for son's negligence Whether son servant or agent of father Whether son had permission or authority of father.Summary :
A pre-existing disability was discussed in this case.
Digest :
Kho Kong Seng v Mabbun [1964] MLJ 58 High Court, Kuching (Harley J).
693 Personal injuries -- Pre-trial loss of earnings
6 [693]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pre-trial loss of earnings Duty of plaintiff to mitigate loss No award where plaintiff failed to look for a job after a reasonable periodDigest :
Wee Sia Tian v Long Thik Boon [1996] 3 SLR 513 High Court, Singapore (Judith Prakash J).
See
DAMAGES (PERSONAL INJURY OR DEATH), para 983.694 Personal injuries -- Pre-trial loss of earnings
6 [694]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pre-trial loss of earnings Evidence of earnings Need to corroborate plaintiff's oral assertionsSummary :
The plaintiff (a 48-year-old Malaysian citizen) and the defendant were involved in a road accident in November 1992. At the time of the accident, he was working for a Singapore company. The plaintiff asserted that he earned an average of $1,800 a month with overtime but had no documentary evidence to support this. After the accident, the plaintiff did not resume employment until December 1994. The assistant registrar assessed the plaintiff's income at the time of the accident at $1,500 a month. With respect to pre-trial loss of earnings, he divided the pre-trial period into three sub-periods and made separate assessments for the various sub-periods Ð (a) the first 13 months when the plaintiff had medical leave; (b) another 12 months during which the plaintiff had been unemployed; and (c) the sub-period after the plaintiff found alternative employment. He also awarded damages for loss of future earnings and loss of earning capacity. The defendant appealed against the awards under these heads.
Holding :
Held
, allowing the appeal: (1) the general rule was that special damages had to be strictly proved otherwise they were not recoverable. On the evidence, the plaintiff had only been able to establish that he earned $677 a month in 1992. Nevertheless, since defendant's counsel was willing to accept that the plaintiff's average monthly income should be assessed at $1,100, the court allowed this figure although it had not been strictly proved; (2) in the light of the evidence, the plaintiff had not taken sufficient action to mitigate his loss during the second period. Since he was not given any further medical leave after November 1993, the medical opinion must have been that he was capable of working at some level at least. Whilst it was unreasonable to require the plaintiff to find and start work immediately after his medical leave expired, after March 1994 he did not have any further excuse not to even look for a job. On that basis, the plaintiff was awarded $1,100 a month for the period between December 1993 and March 1994 inclusive. He was not entitled to any payment for loss of earnings during the period April 1994 to November 1994; (3) on the evidence adduced, it was reasonable to infer that the plaintiff could have earned at least $52 a day (including $12 a day as overtime) had he been physically up to the work. On that basis, if he worked overtime six days a week and on two Sundays each month, he would have been able to earn an extra $264 a month ($12 on each week day and $96 on each Sunday). By that calculation, his loss of earnings for the 15-month period would have been $3,960; (4) for many years the construction industry in Singapore had been dependent on foreign workers. The court took judicial notice of the fact that this situation was going to continue in the foreseeable future. In such circumstances, no distinction would be drawn between a Malaysian and a Singaporean construction worker on the basis that the Malaysian worker might have a shorter working life because his work permit may not be renewed in the event of a downturn in the construction industry; (5) with respect to future loss of earnings, the assistant registrar had not made such a great error in fixing the multiplier here at eight that the court was bound to interfere with his decision; (6) the multiplicand of $800 applied by the assistant registrar was, however, speculative and not based on hard or reliable evidence. In the plaintiff's present employment circumstances, loss of future earnings should be calculated on the basis that he would be unable in the future to work overtime and would thus sustain a loss in income. His loss of future earnings was therefore assessed at $264 a month in the same manner his loss of income during the third pre-trial sub-period was calculated. The present award of $76,800 was set aside and replaced by an award for $25,344; (7) the assistant registrar's award of $40,000 was on the high side bearing in mind that the plaintiff was still able to work as a carpenter and his main disability Ð the difficulty he experienced with climbing Ð was not very serious. The award under this head was reduced to $25,000; (8) (per curiam) most of the difficulty which the original assessment and the appeal gave rise to could be attributed to the paucity of evidence brought forward to support the plaintiff's assertions. In matters of earnings it was very difficult for a court to rely only on a plaintiff's oral assertions. Every effort should have been made to corroborate the claim.Digest :
Wee Sia Tian v Long Thik Boon [1996] 3 SLR 513 High Court, Singapore (Judith Prakash J).
695 Personal injuries -- Principles of assessment
6 [695]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Principles of assessment Elements to be considered Personal injuries arising from negligence Quantum Principles of assessment.Summary :
The respondent claimed damages for personal injuries caused by the negligence of the appellant. This appeal concerned the quantum of damages only. The respondent was 23 years of age and employed as a lorry driver at S$120 pm. He remained in hospital for three months and continued to go there twice a week for about six months. He used crutches for about three months after leaving hospital and according to the doctor's opinion he would have a permanent disability of his leg. The learned trial judge awarded the respondent S$24,000 general damages.
Holding :
Held
: there are three elements to be considered in assessing general damages: (a) pain and suffering; (b) loss of future earnings; (c) the disadvantage arising from disablement apart from loss of earning power. While element (b) is related to probable earning of the injured person, elements (a) and (c) are not so related and are the same regardless of his financial position. Wages here are lower than in England and damages relative to loss of earnings will naturally be generally less here than in England. It was clear that the respondent must have suffered considerable pain and suffering and S$5,000 would not be an excessive award. Although it is difficult to assess loss of future earnings, an award of S$9,000 in this case would be justified. As regards the third item, an award of S$10,000 would not be excessive.Digest :
Loh Ah Tow v Yusof [1954] MLJ 112 Court of Appeal, Singapore (Murray-Aynsley CJ (S).
696 Personal injuries -- Pubic bone
6 [696]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Pubic bone Pubic bone Fracture of inferior ramus of left pubic bone Muscle weakness Aggravation of pre-existing osteoarthritis of spine and hips.Summary :
The defendant was a contractor carrying out certain works on the land forming part of Monk's Hill School under a contract with the government of Singapore. The plaintiff was an engineer of the PWD who was responsible for the inspection of the execution of the defendant's contract. While inspecting the site one morning, the plaintiff came across some thin metal sheets lying on the ground. He walked on the metal sheets thinking them to be lying on firm ground. However the metal sheets had been used to cover a trench which the defendant had dug (without the instructions of the plaintiff) and as a result the plaintiff suffered a fracture of the inferior ramus of the left pubic bone. In an action for damages:
Holding :
Held
: although the plaintiff had recovered from his injury. there was residual functional impairment in the form of muscle weakness and an aggravation of pre-existing osteoarthritis of the spine and hips and a superimposed rheumatic affection of the sciatic nerve. Taking all the circumstances into consideration, the plaintiff should be awarded S$5,000 general damages.Digest :
Ng Shin Hon v Chow Wai Chuang [1968] 1 MLJ 37 High Court, Singapore (Chua J).
697 Personal injuries -- Quadriplegic
6 [697]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Quadriplegic Quadriplegic Quantum Interest whether payable.Summary :
In this case, it is not disputed that during the course of loading three oil drums from 'Sea Supply' (owned by the defendants) onto a larger vessel '14 Ramadhan', one drum fell and the plaintiff was very seriously injured. Can hooks were used for the loading. The plaintiff became a quadriplegic and was completely dependent on others for all his personal needs.
Holding :
Held
: (1) (f) special damages: S$6,973 (agreed); (2) judgment for S$360,513 and costs were entered for the plaintiff; (3) damages were awarded under the following heads: (a) general damages, ie for pain and suffering, and loss of amenities: S$180,000; (b) loss of expectation of life: S$6,500; (c) costs of future nursing care: S$122,400; (d) loss of future earnings: S$25,200; (e) actual loss of earnings: S$19,440;no order for interest was made.Digest :
Mohamed Fami Hassan v Swissco Pte Ltd & Government of the Republic of Iraq; Iraqi State Enterprise for Maritime Transport (Third Party) [1986] 1 MLJ 461 High Court, Singapore (Sinnathuray J).
698 Personal injuries -- Recovery under Rylands v Fletcher
6 [698]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Recovery under Rylands v Fletcher Personal injuries Recovery under doctrine of Rylands v Fletcher Interest on damages.Summary :
The defendants had built a water reservoir above ground level on their land. The reservoir contained very large quantities of water. There was heavy rainfall in the surrounding hills on 7 and 8 October 1963, and seepage conditions appeared on the water bund of the reservoir. The bund started to fail and finally collapsed. As a result, water escaped on to the adjacent land and this caused the death of one Hoon Thye Peng by drowning. The administrator of his estate claimed damages arising out of the death.
Holding :
Held
: (1) this case comes within the rule in Rylands v Fletcher and the defendants were liable in damages; (2) damages for personal injuries can be recovered under the doctrine of Rylands v Fletcher and therefore the plaintiffs were entitled to recover damages for the death of the deceased in this case.Digest :
Hoon Wee Thim v Pacific Tin Consolidated Corp [1966] 2 MLJ 240 High Court, Singapore (Gill J).
699 Personal injuries -- Rib fractures, teeth
6 [699]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Rib fractures, teeth Brain injury Personal injuries Fracture of ribs, loss of teeth and concussion of brain Permanent loss of memory regarding accident Prolapse of discs Assessment of damages Assessment based on admissions by counsel Whether binding on party Contributory negligence.Summary :
This was an appeal against the judgment of the High Court at Johore Bahru in an action for damages for personal injuries sustained in a road collision. The respondent suffered injuries including the fracture of the second, third, fourth and seventh ribs, loss of five teeth in the lower jaw and fracture of six teeth in the upper jaw besides suffering from concussion of the brain. He was rendered unconscious and did not regain consciousness till the following morning at the Johore Bahru Hospital. The permanent results of the injuries sustained appear to be: loss of memory in regard to how the accident happened and a prolapse of the discs between the fifth and sixth vertebrae and between the sixth and seventh vertebrae. According to medical evidence, the only permanent effect of prolapsed discs would be general weakness of the body. The court, basing its decision on certain admissions made by counsel who then represented the appellant, assessed a sum of RM99,520 as general damages and RM3,556.90 as special damages. It also held that the collision was caused by contributory negligence on the part of the appellant and the respondent in the proportion of two-thirds and one-third respectively.
Holding :
Held
, dismissing the appeal: (1) the appellant was bound by the admissions made by counsel who represented him, and the question of quantum should be approached on the basis of those admissions; (2) in this case, there was every indication that allowance had been made for usual contingencies since the life expectation of the respondent as agreed was 13 years from the date of the accident and the agreed multiplier was only eight; (3) (obiter) Although the award in this case might be on the high side, it was not excessive. As a result of the accident the respondent had to return to the United Kingdom where the cost of living is much higher and no consideration appears to have been given on that account.Digest :
Haron v Macaulay [1969] 1 MLJ 169 Federal Court, Kuala Lumpur (Barakbah LP, Suffian and MacIntyre FJJ).
700 Personal injuries -- Rib fractures
6 [700]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Rib fractures Itemization Personal injuries Fracture of ten ribs and abrasions Whether compensation should be itemized Special damages not proved.Summary :
In this case, judgment for default of defence had been entered against the first and second defendants in an action for damages arising out of a road accident involving the plaintiff, a cyclist, and a lorry driven by the first defendant. The plaintiff had suffered fractures of ten ribs and abrasions. He had been employed as a watchman and it was likely that because of the effect of his injuries his services would be terminated. He also claimed special damages but did not prove any of them.
Holding :
Held
: (1) in this case, it would not be justified to itemize the compensation for each of the injuries received by the plaintiff separately in the same accident. The injuries were so connected that a lump-sum compensation for pain and suffering should be awarded; (2) in the circumstances, an award of RM12,000 for all the injuries and pain and suffering would be reasonable; (3) it was premature for the court to make an award for loss of earnings as the services of the plaintiff had not been terminated and therefore the claim would be dismissed without prejudice; (4) as the special damages had not been proved, no award could be made.Digest :
Jasi Alam v Nohya bin Mustar & Anor [1975] 1 MLJ 166 High Court, Kuala Lumpur (Hashim Yeop A Sani J).
701 Personal injuries -- Scars, lacerations and haematomas
6 [701]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Scars, lacerations and haematomas Method of assessment Personal injuries Quantum Assessment Whether court may add 20% to award owing to increase in cost of living Whether there is a discernible trend of a 20% increase in awards.Summary :
The plaintiff suffered multiple injuries as a result of a road accident. Although the defendant entered appearance, no defence was filed as negligence was admitted. Thereupon the plaintiff entered judgment for damages to be assessed. In the event, the deputy registrar awarded general damages at S$24,000 plus 20%, ie S$28,800, and it was common ground that the 20% represented his acceptance of a submission made by counsel for the plaintiff that recently the High Court has made awards which represented an increase of 20% as compared to awards for comparable injuries made in earlier years and that a discernible trend of a 20% increase in awards could be seen from recent awards of the court. On appeal,
Holding :
Held
: (1) the basis adopted by the deputy registrar in assessing general damages was wrong in principle. The well known and long established principles which govern a court in assessing general damages for injuries sustained by a plaintiff arising out of the negligence of a defendant are still applicable and they do not permit a court to arrive at an amount it would award and then to add a percentage increase on to it because of, say, an increase in the cost of living; (2) in this case, general damages of S$24,000 as estimated by the deputy registrar was not so inadequate as to justify the court to interfere with it.Digest :
Phuah Jee Suan v Nila Vasu Pillai [1972] 1 MLJ 202 High Court, Singapore (Wee Chong Jin CJ).
702 Personal injuries -- Scars and keloid formation
6 [702]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Scars and keloid formation Personal injuries Chemical burns leaving scars and keloid formation Assessment of damages.Summary :
In this case, the plaintiff was involved in a road accident and as a result of being pinned under a landrover he suffered chemical burns which after treatment left scars and keloid formations. The defendants and the third party agreed that they were equally to be blamed for the accident and the question was as to the amount of general damages that should be awarded for the injuries.
Holding :
Held
: in all the circumstances of this case, the sum of RM12,000 would be appropriate and reasonable.Digest :
Davies v Mado's Enterprise & Ors [1974] 2 MLJ 195 High Court, Johore Bahru (Syed Othman J).
703 Personal injuries -- Self-employed or professional man
6 [703]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Self-employed or professional man Duty of mitigate loss Loss of wife's income Special damages Leg [1/2]" shortening Knee flexion limited to 90‘.Summary :
In the case of a self-employed or professional man, whose earnings fluctuate, the court will have to estimate his loss and make an award of damages in respect of it. In this case, a quarry contractor claimed special damages for loss of earnings estimated at RM300 per mensem. Having considered the circumstances of the case, the court assessed the plaintiff's income at RM200 per mensem, 'the lowest possible limit consistent with the nature of his work'.
Digest :
Wong Kong v Yee Hup Transport Co & Ors [1966] 2 MLJ 234 High Court, Ipoh (MacIntyre J).
Annotation :
[Annotation:
On appeal the Federal Court ([1967] 2 MLJ 93) agreed with the trial judge's assessment of the plaintiff's monthly income but on the facts reduced the awards for actual loss of earnings and general damages.]704 Personal injuries -- Skull fracture
6 [704]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Skull fracture Compound depressed skull fracture Quantum Award of $42,000 Whether amount wholly erroneous.Summary :
This was an appeal by an infant, the appellant, against the judgment of Chua J who assessed general damages suffered by the appellant at S$42,000. The respondent admitted 80% liability. The accident occurred on 24 October 1980 when the appellant was knocked down by the respondent who was riding a motor cycle. The appellant suffered a compound depressed skull fracture in the right parieto-occipital region. The fracture was surgically treated by removal of the depressed bone and repair of torn dura. He recovered well and was discharged from hospital on 1 December 1980. He was nine at the date of the accident and thirteen at the date of trial. After his discharge he received outpatient treatment. There was indication that he stood a good chance of suffering from epileptic fits. The learned trial judge assessed damages for pain and suffering and loss of amenities at S$25,000; for future medical attention at S$2,000, and for loss of earning capacity at S$15,000, and gave judgment for the appellant for S$33,600, being 80% of the total assessment of S$42,000.
Holding :
Held
, dismissing the appeal: (1) in an appeal against the quantum of damages, it is settled law that the onus on the appellant is a heavy one and it must be established plainly that the trial judge's award was a wholly erroneous estimate; (2) in all the circumstances, it was quite impossible to say that the amount of S$42,000 by way of general damages was a wholly erroneous estimate.Digest :
Hang Jong Juan v Tan Yeo Soon [1986] 2 MLJ 5 Court of Appeal, Singapore (Wee Chong Jin CJ, Sinnathuray and Thean JJ).
705 Personal injuries -- Skull fracture
6 [705]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Skull fracture Fracture of occipital bone Diminution of sense of smell Recurrent headaches General damages.Summary :
The plaintiff, aged 24, a lorry attendant, earning RM200 monthly salary, was riding in a lorry driven by the first defendant, when it overturned. As a result of the accident, he suffered a fracture of the occipital bone, a diminution of his sense of smell and a tendency to get recurrent headaches when working in the sun, and this prevented him from working long hours continuously. He sued the first defendant as well as the second defendant, their common employer, for damages for injuries suffered by him. Liability was admitted, and special damages were agreed at RM150. On the question of general damages,
Holding :
Held
: an award of RM7,500 as general damages was considered a fair amount.Digest :
Goh Kok Lay v Hor Siak & Anor [1972] 1 MLJ 221 High Court, Kuala Lumpur (Suffian FJ).
706 Personal injuries -- Skull fracture
6 [706]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Skull fracture Normal age of retirement Itemization and interest Personal injuries Multiple laceration Linear fracture of left temporal bone Injury resulting in physical disability and mental retardation Special damages Loss of future earnings Pain, suffering and loss of amenities Interest Need to itemize award of damages.Summary :
In this case, the appellant admitted liability for the accident which caused the injuries to the respondent and the only issue was the amount of damages. The accident occurred on 5 November 1972 and judgment was given on 23 November 1978. The respondent suffered multiple lacerations and a linear fracture of the left temporal bone as a result of which he was unconscious for five days. The injury resulted in physical disability and mental retardation. He lost his job as a lorry driver and has been unsuccessful in getting employment. The learned trial judge awarded RM16,636.80 for special damages and a global sum of RM45,000 for pain and suffering and loss of amenities and for loss of future earnings. Interest at 3% was awarded on the special damages and at 6% on the whole of the general damages. The appellant appealed.
Holding :
Held
: (1) the loss of earnings between the date of the accident and the date of trial constituted special damages, which could be recovered, if pleaded, as in this case, and therefore the award for special damages must be upheld; (2) in the circumstances, it must be assumed that the respondent's useful working life would usually have ended at 55 years and the sum for loss of future earnings should be reduced to RM15,633; (3) on general damages for pain and suffering and loss of amenities, the sum of RM20,000 awarded by the learned trial judge was appropriate; (4) interest at 3% would be awarded on the special damages from the date of accident to date of trial and at 6% on the general damages for pain and suffering and loss of amenities from date of service of the writ. No interest should be allowed for the damages for loss of future earnings.Digest :
Murtadza bin Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216 Federal Court, Penang (Raja Azlan Shah CJ (Malaya).
707 Personal injuries -- Skull fracture
6 [707]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Skull fracture Permanent limp Skull and brain Possible future effects Hypothetical.Summary :
The plaintiff, a girl of about 12 years, sued by her next friend for damages in respect of personal injuries sustained by her in consequence of her having been knocked down by a motor lorry driven by the defendant. The plaintiff had alighted from a bus and was running across the road when she was knocked down by the lorry. She suffered multiple abrasions and contusions and a fracture of the skull, the permanent effect of which was that she had a limp on the left foot and a tendency for her to trip.
Holding :
Held
: the plaintiff was guilty of contributory negligence which was assessed at 50%, as she did not look to either direction before she ran across the road. In the circumstances, taking into account the normal pain and suffering which the plaintiff had undergone and loss of amenities, but not taking into account the possible future effects of the injuries because they appear to be purely hypothetical, general damages were assessed at RM8,000, of which half would be payable to the plaintiff.Digest :
Tey Siew Goh v Tay Tian Soon [1965] 1 MLJ 21 High Court, Muar (Gill J).
708 Personal injuries -- Skull fracture and head injuries
6 [708]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Skull fracture and head injuries Multiple injuries Loss of future earnings Personal injuries Injuries to head, face, fracture to base of skull, etc Claim for damages Whether defendant negligent Liability Damages Assessment of quantum of damages Grounds on which court decides.Summary :
A colleague of the plaintiff and two others were travelling along Guillemard Road in a taxi from the airport and heading for the city closely followed by the plaintiff on his motor cycle. There were three lanes on that side of the dual carriageway which carried traffic citywards and both the taxi and the plaintiff's motor cycle were in the centre lane. The plaintiff was in the middle left hand half of that centre lane as one faces the city. At the material time, the lorry was travelling behind and on the inside lane to the left of both of them as one faces the city. The taxi was travelling at about 30 mph with the motor cycle and the lorry at a slightly slower speed but more or less keeping pace behind the taxi. Just before the accident took place on a slight right bend towards the city not far from Lim Ah Woo Road, the lorry accelerated slightly faster than the motor cycle on the inside lane, got abreast the motor cycle and cut sharply to its right when slightly more than half way past the motor cycle. It clipped the left handle bar of the motor cycle with the flat back of the lorry or slightly under there about a third of the way from its rear. The plaintiff fell to his left and the motor cycle to its right and the rear wheel ran over the plaintiff's head. As a result of the said accident, the plaintiff suffered injuries to his head and face including fractures to the base of his skull, the left mandible, left zygoma and his eleventh rib and the left ilium or pelvic bone. He also developed severe visual defects, double vision and a squint as well as diabetes insipidus of a permanent nature. The plaintiff claimed damages against the defendants.
Holding :
Held
: (1) on the facts, the defendants were totally liable; (2) in all the circumstances of the case and in particular the fact that it could not be assumed that the plaintiff would succeed in remaining in the air force or would necessarily want so to remain, an award of £7 per week until he reaches the age of 60 years for loss of future earnings would be fair; (3) the plaintiff would therefore be awarded S$31,084.80 for loss of future earnings and S$19,842.35 in respect of past loss of earnings.Digest :
Nicholas Arthur Nock v Mohamed Ali bin Suleiman & Anor [1976] 1 MLJ 100 High Court, Singapore (Winslow J).
709 Personal injuries -- Special damages
6 [709]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Special damages Abolition of post Special damages for 12 months following accident Abolition of post No prospect of continued employment.Summary :
At the time the appellant met with the accident, he was holding a post which was shortly to be abolished and he had no prospect of continued employment with the particular firm. In considering the period of 12 months following the accident during which he was unable to engage in any employment the learned trial judge dealt with the matter under the head of general damages.
Holding :
Held
: it was not fair to assume the appellant could not have got some sort of employment during that period: an estimate should be made as to the sort of wage that he would be likely to have been able to obtain had he been fit to work during that period, and such sum so awarded properly fell under the head of special damages.Digest :
Quek Seng Hee v Wah Kim Beng [1959] MLJ 215 Court of Appeal, Singapore (Rose CJ, Tan Ah Tah and Buttrose JJ).
710 Personal injuries -- Special damages
6 [710]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Special damages Assessment Failure to produce receiptsSummary :
This was an appeal by both the plaintiff and the defendants against the damages assessed by the Senior Assistant Registrar of the High Court ('registrar') in respect of injuries suffered by the plaintiff as a result of the second defendant's negligent driving for which the second defendant was held 90% liable. The registrar had disallowed four items of special damages amounting to RM6,300: (1) damages to clothing and miscellaneous items such a shoes, undergarments, pen, belt and watch (RM300); (2) costs of Chinese herbs and nourishing food (RM1,000); (3) food, accommodation and travelling expenses (RM3,500); (4) loss of use of vehicle (RM1,500) as they were not supported by any receipts. The registrar awarded general damages in the following amounts: (1) multiple abrasion and lacerated wounds with haematoma including pain and suffering (RM4,000); (2) cerebral concussion (RM1,500); (3) hearing loss (RM2,500); (4) loss of earning capacity (RM139,000).
Holding :
Held
, dismissing the appeal: (1) in the case of damages to clothing and miscellaneous items, the absence of receipts in support of purchase of these items does not mean that no damages would be allowed. In the absence of receipts the Court could make an attempt to assess their worth at the date they were destroyed. However, as no evidence was led as to how long the miscellaneous items had been used, the Court could assume that the items were so well worn that they no longer have any value; (2) in respect of the costs of Chinese herbs and nourishing foods, the sinseh who provided the same could easily have been called to testify the amounts he had been paid. The absence of the sinseh's evidence coupled with the absence of receipts justified the conclusion that such payments may not have been made; (3) the claim for food, accommodation and travelling expenses were disallowed as there was no apportionment of the amount claimed into the relevant categories of food, accommodation and travelling expenses; (4) the plaintiff did not lose the use of his motorcycle during the time when he was hospitalised. The claim for loss of use of vehicle cannot be made after the motorcycle was repaired or ought to have been repaired; (5) the Court can award damages for loss of earning capacity provided that the plaintiff was receiving earnings at the time of the accident. The registrar was correct in her conclusion that the plaintiff had suffered a loss of earning capacity; (6) the restriction against taking into account prospect of future increased earning applies when considering loss of earning capacity. The registrar was correct in not taking into consideration, when assessing the plaintiff's loss of earning capacity, the prospect of the plaintiff's earning in the future, flying allowance, gratuity and pension because this is prohibited by s 28A(2)(c)(ii) of the Civil Law Act 1956; (7) as neither counsel was able to show how the registrar was wrong in arriving at her award for loss of earning capacity, the Court will not interfere with the decision of the registrar; (8) similarly, since neither counsel was able to show how the registrar was wrong in arriving at her awards for multiple abrasion and lacerated wounds with haematoma including pain and suffering, cerebral concussion and hearing loss, the Court will not interfere with the decision of the registrar.Digest :
Chew Sheong Yoke v Lawrence Su Chu Seng & Anor Suit No K 100 High Court, Sabah and Sarawak (Ian Chin J).
711 Personal injuries -- Special damages
6 [711]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Special damages Claim for continuing loss Failure to plead Statement of claim pleading continuing injury but claiming loss of earnings for specific number of months only Whether claim for further loss to be allowedSummary :
On 20 December 1988 there was a collision at the junction of Ang Mo Kio Avenues 5 and 6 between two cars. The plaintiff was a passenger in one of the cars. She suffered a closed fracture of the right femur and minor head injury with cerebral concussion. The first defendant was the owner of the other car and the second defendant was the driver. The plaintiff sued both defendants alleging negligence on the part of the second defendant. In their joint defence the defendants admitted negligence on the second defendant's part but denied that he was driving as the servant or agent of the first defendant and made no admission as to the injuries and loss suffered. The action against the first defendant was discontinued and judgment was on 20 January 1992 entered for the plaintiff against the second defendant for damages to be assessed. On 23 May 1992 damages were assessed by the assistant registrar at S$19,800 for the injuries and a sum which included S$29,250 for special damages and the second defendant ordered to pay costs to be taxed. The second defendant appealed. The general damages in the sum of S$19,800 consisted of; (a) cerebral concussion S$1,500; (b) closed fracture of right femur S$11,000; (c) 22cm scar on right thigh S$2,300; (d) loss of earning capacity S$5,000. On appeal, with regard to the general damages granted, it was contended, inter alia, that, in the absence of any specific admission, the truth of the contents of the medical reports included in the agreed bundle of documents had still to be proved. With regard to the special damages granted, the second defendant's counsel argued, inter alia, that it should not have included loss for more than the 21 months pleaded as the statement of claim did not state that the loss was continuing. On the subject of costs, it was the second defendant's case that the assistant registrar had erred in not exercising his discretion to disallow the plaintiff part of his costs as the plaintiff had failed to proceed with her claims under certain paragraphs of the particulars of special damages and that there had been considerable preparation on the second defendant's part to resist the claims under that head. None of these points had been raised before the assistant registrar.
Holding :
Held
, dismissing the appeal: (1) she was not cross-examined at all on this. Thus a finding of loss of consciousness would have been wholly justified and the sum awarded was proper; (2) the contents of a document might be proved by primary or secondary evidence and primary evidence meant the document itself produced for the inspection of the court. Documents such as the medical reports bore the signatures of the makers and it could be quite inconvenient and expensive to prove the signature in each case. By agreeing to an agreed bundle, however, the signatures might be treated as having been proved in accordance with s 69 of the Evidence Act (Cap 97) ('the Act') and that all the documents (usually copies) might be treated as the originals themselves produced for the inspection of the court within the meaning of s 64 of the Act. In the circumstances, including the fact that the second defendant's counsel himself referred substantially to the contents of the documents in support of his submissions, a finding that the contents had been proved was justified; (3) in general, only special damage which had been pleaded and proved could be recovered in an action in the sense that the plaintiff had to warn the defendant in the pleadings of the compensation claimed so that the defendant might know the case he had to meet and assess the amount to pay into court or to agree with the plaintiff. On the facts, although the statement of claim pleaded loss of wages for 21 months only, the particulars of injuries referred to the plaintiff's condition as continuing to the date of the action. A claim under this head was made for S$31,500. The second defendant would have been left in no doubt as to the particulars of the claim under this head and would have known the case he had to meet. If he was so minded, he could have made a payment into court or reached an agreement with the plaintiff on the sum to be allowed under this head but there was no payment in and no agreement. Since the second defendant was not taken by surprise and there was no evidence that he was in any difficulty over the failure to plead any particulars of the claim, and since he had failed to address this point before the assistant registrar, he could not now be allowed to take this point; (4) the plaintiff suffered minor head injury with cerebral concussion. The medical reports mention cerebral concussion and the plaintiff said that she was unconscious after the accident and regained consciousness in hospital;while the court could interfere with the assistant registrar's exercise of discretion because no reasons had been given, there had to be sufficient materials before the court for it to make an order disallowing any part of the costs to a plaintiff who had succeeded substantially in the exercise of its discretion under O 59 r 3(2) of the Rules of the Supreme Court 1990. Taking into consideration the fact that no point was taken before the registrar on the plaintiff's failure to proceed with part of her claims, the fact that the plaintiff had succeeded substantially and the absence of any evidence as to whether the second defendant knew of the plaintiff's intention to proceed, the court was not persuaded to make any order for costs in place of the assistant registrar's order.Digest :
Ng Bee Lian v Fernandez & Anor [1994] 2 SLR 633 High Court, Singapore (Lim Teong Qwee JC).
712 Personal injuries -- Special damages
6 [712]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Special damages Legal fees Whether allowable to be claimed as damages Separate damages for injuries, scars, pain and suffering result in overlapping award Not allowableSummary :
The respondent was travelling in the aircraft of the second appellant when the first appellant (a flight stewardess) negligently caused hot water to spill onto the respondent who was then eight years old. He suffered injuries which required hospitalization. The sessions court judge awarded the respondent damages in the sum of RM30,000 for injuries, RM20,000 for scars and RM600 for legal fees totalling the sum of RM50,600, and RM60,000 for pain and suffering. The appellants appealed against the decision of the sessions court judge on the ground of limitation of liability under art 22 of the Carriage by Air (Application of Provisions) Order 1975 and that the court failed to take into account the relevant considerations for assessing damages.
Holding :
Held
, allowing the appeal: (1) the second appellants' defence of limitation of liability under s 6 of the Carriage by Air Act 1974 cannot be set up as it was not pleaded. By not pleading, the respondent was not only surprised but also prejudiced as he had lost the opportunity to show that there was recklessness and knowledge that damage would result on the part of the first appellant, which would make the limitation inoperable; (2) for the respondent to claim from the appellants whatever legal fees he had paid to his lawyer would mean claiming for costs on an indemnity basis which matter should properly come under the claim for costs of the action which the respondent had asked for. To allow the item would mean the respondent would be getting almost twice over the costs in the event the court awards him the costs of the action. This claim for RM600 cannot be allowed; (3) there cannot be a sum for the injury, a sum for the scars and a sum for the pain and suffering as this would result, as happened in this case, in producing an extremely or outrageously high and overlapping award. Taking all the circumstances mentioned, a global award of RM30,000 would be adequate compensation.Digest :
Sitti Rajumah & Anor v Mohd Rafiuddin bin Elmin Civil Appeal No K12-07 of 1996 High Court, Kota Kinabalu (Ian Chin J).
713 Personal injuries -- Special damages
6 [713]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Special damages Medical expenses already paid by defendant Whether recoverableSummary :
The first plaintiff was the child of the defendant and the second plaintiff was the wife of the defendant. On 31 May 1988, the first and second plaintiffs were travelling in a motor car driven by the defendant when it was involved in a collision with another car. The first and second plaintiffs suffered personal injuries. On 26 March 1990 interlocutory judgment by consent was entered for both plaintiffs against the defendant with damages to be assessed by the registrar. On 28 February 1991 an assistant registrar assessed the damages claimed by the second plaintiff in the sum of S$40,000 but made no award in respect of the special damages claimed by the plaintiffs which had been agreed at S$10,144. The plaintiffs contend that the award of S$40,000 for the second plaintiffs' pain and suffering of the multiple injuries she sustained was wholly inadequate and further that the assistant registrar erred in refusing to make an award for the second plaintiffs' loss of future earnings or more correctly, the loss of earning capacity in the future. The main question was whether the agreed special damages, which in the main constitute the medical expenses of both plaintiffs and paid by the defendant principally from a joint account of the defendant and the second plaintiff were recoverable against the defendant. The plaintiffs contend that the defendant as the father of the first plaintiff and as the husband of the second plaintiff had a duty to pay for these expenses as these expenses were necessarily incurred by the plaintiffs as a result of the accident and that it was immaterial that the defendant who paid these necessary expenses was the wrongdoer against whom this action was maintained. A further argument advanced by the plaintiffs was that in motor accident claims, since there was in Singapore compulsory passenger liability, the wrongdoer was merely a nominal defendant, the real defendant being the defendant's insurers.
Holding :
Held
, varying the order only to the extent of the award of damages for pain and suffering: (1) in considering whether an award was too low or too high it would be right to look at the separate items which made up the whole as only then could it be determined whether the award was too low or too high; (2) (iv) there was no logical basis for discounting an award (as the assistant registrar had done) for the overlapping of injuries on the basis that the injuries were limited to the legs. In the court's view it could not be said that there was an overlapping of injuries in any sense at all; (3) as to the plaintiff's loss of earning capacity in the future, the real question was whether the second plaintiff's expectations of seeking employment at some distant date in the future, 12 to 13 years at least from the present time, was real or fanciful. Medical evidence showed that with further surgery to her hip joint, which she would have to undergo, she would probably be able to resume her normal duties, ie as a production group leader, in a year's time; (4) the assistant registrar failed to rationalize the injuries and the resulting disabilities with the cases referred to him in arriving at the figures he allotted for each specific injury (i) S$27,000 was a fair and reasonable compensation for the pain and suffering and the disability suffered by the second plaintiff for her fractured neck of the left femur injury; (ii) the assistant registrar's award for the fracture of the medial malleolus of the left ankle with fixation was revised to S$12,000; (iii) an award of S$3,000 was made for the multiple surgical scars as these surgical scars were the direct consequence of the injuries sustained in the accident;the contract of insurance between a defendant and his insurers in essence was that the insurers would indemnify the defendant for what the defendant was found liable for his wrongdoing. The injured plaintiff had no contractual rights against the defendant's insurers and could claim nothing from the defendant's insurers directly. If the wrongdoing defendant had for any reason whatsoever discharged some of his liability to the injured plaintiff, the injured plaintiff could not claim for that same liability against the wrongdoer defendant. The fact that the wrongdoer defendant could seek an indemnity from his insurers for the liability discharged did not give the injured plaintiff a right to claim for the liability which the wrongdoer defendant had already discharged.Digest :
Lim Xueru, Cheryl & Anor v Lim Kai Meng [1993] 1 SLR 279 High Court, Singapore (Karthigesu J).
714 Personal injuries -- Special damages
6 [714]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Special damages Principles on which awarded Cost of medical treatment Treatment by Chinese physician Claim for cost of treatment as special damages Phobia arising from accident Damages for phobias and neuroses Interest on special and general damagesDigest :
Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 3 MLJ 144 High Court, Singapore (Yong Pung How J).
See
DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 627.715 Personal injuries -- Spinal cord, paralysis
6 [715]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal cord, paralysis Leg fracture Fractures of vertebrae, femur and transection of spinal cord Incomplete paralysis of upper limbs and total paralysis of lower limbs.Summary :
On the day of the accident, the plaintiff was in the process of fixing zinc sheets on the roof at a height of twenty-five feet from the ground when he slipped and fell down sustaining severe injuries. No safety belts were used because none were provided. The plaintiff was 28 years old at the time of the accident and he was earning between RM300 and RM350 monthly. As a result of the said accident, he sustained fractures of two vertebrae with transection of the cervical spinal cord and a fracture of the femur. He suffered incomplete paralysis of the upper limbs and total paralysis of the lower limbs. The plaintiff claimed for damages caused by the negligence and/or breach of statutory duty of the first, second and third defendants or any of them. The plaintiff was one of the labourers working at the site where a factory was being constructed for a company, E Ltd, undertaken by the first defendant.
Holding :
Held
: (1) liability amongst all the defendants towards the plaintiff should be apportioned as follows: first defendant 40%, second defendant 40% and third defendant 20%; (2) the plaintiff was entitled to RM93,000 general damages and RM28,800 special damages.Digest :
Chang Fah Lin v United Engineers (M) Sdn Bhd & Ors [1978] 2 MLJ 259 High Court, Kuala Lumpur (Abdul Hamid J).
716 Personal injuries -- Spinal cord
6 [716]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal cord Promotional prospects and wage increments Inflation Spinal cord Injury resulting in paraplegia Damages for pain and suffering and loss of amenities Inflation.Summary :
In this case, the plaintiff sustained injuries as a result of a road accident and suffered a fracture of the first lumbar vertebra and injury to her spinal cord that has resulted in the plaintiff suffering from paraplegia. Liability in negligence was admitted.
Holding :
Held
: (1) the plaintiff would be awarded for loss of earnings the sum of RM14,400 on the basis of RM240 for 60 months and for loss of future earnings the sum of RM22,300 using RM240 as a basis against a multiplier of ten years; (2) the plaintiff is entitled to the sum of RM150 per month for nursing care, that is RM9,000 up to the date of judgment and for the future, applying the tables, RM13,900; (3) taking into account the discernible trend in the awards in the cases involving paralysis and taking into account inflation, the award for the pain and suffering and loss of amenities should be RM75,000.Digest :
Teoh Suan Eng v Lew Meng Shin & Anor [1982] 1 MLJ 363 High Court, Raub (George J).
717 Personal injuries -- Spinal fracture
6 [717]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal fracture Fingers Personal injuries Fracture of cervical spine Weakening of muscles of forearm Fingers of right hand could only be partially flexed or extended Grip and finer movement of fingers not possible within any degree of efficiency Loss of sensation to pain or temperature.Summary :
The second plaintiff, a school teacher aged 22, was hospitalized from 16 December 1961 to 10 May 1962. She suffered from : 5" long lacerated wound over the right side of the scalp; fracture of the cervical spine with marked weakness of the right upper and lower extremities and some disturbance of sensation over the left half of the body. Medical examination on 24 October 1963 showed that the upper extremity of the muscles of the forearm was weak and that the fingers of the right hand could only be partially flexed or extended. Her ability to grip and the finer movement of the fingers were not possible within any degree of efficiency. As a result of the fracture of the cervical spine, the left side of her body from the shoulder down was not sensitive to pain or temperature.
Holding :
Held
: the limited use of the fingers of her right hand was a serious handicap to her as a teacher and the injury to her spine had permanently deprived her of the ability to participate in outdoor games. Although she had not complained of reduced prospects of marriage, that element of damage cannot be overlooked in her case. Taking all the circumstances into consideration, general damages is assessed at RM15,000.Digest :
Saniah & Ors v Abdul Hamid & Ors [1967] 2 MLJ 255 High Court, Ipoh (MacIntyre J).
718 Personal injuries -- Spinal injuries
6 [718]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal injuries Multiple disabilities Loss of future earnings and loss of earning capacity Plaintiff's pay at time of accident below earning capacity Method of computation Claim for loss of motorcycle Mitigation Claim for traditional herbal treatment Claim for wife's loss of earnings and travelling expensesSummary :
The plaintiff was a 37-year-old precision machinist earning S$990 per month. His motorcycle collided with the defendant's bus, resulting in serious spinal injuries. The plaintiff suffered disabilities suffered such as bowel and bladder malfunctions, penile impotence, osteoarthritis, limp and weakness of both legs. The accident occurred in October 1989.
Holding :
Held
, awarding the plaintiff S$375,753.99 in damages and holding the defendant 100% liable for the accident: (1) the court found as a fact that the defendant failed to keep a proper lookout when he drove the bus onto the plaintiff's side of the road without waiting to see if it was safe to do so; (2) the plaintiff was an ambitious man determined to make good his earlier shortcomings in his studies and his earnings. He was drawing a salary of S$1,836 per month before his job at the time of the accident. His pay of S$990 per month for the job at the time of the accident was below his earning capacity and he took it because he wanted to acquire experience that was necessary to start his own business in precision machining. His plans were cut short by the negligence of the defendant and to take S$990 as the sum he was earning to calculate loss of earnings would be to under-compensate him. The calculation of pre-trial loss of earnings had to be computed at S$1,800 per month plus loss of CPF at 18%, less income tax payable. The award for pre-trial loss of earnings will be S$45,448.74; (3) the plaintiff's capacity to earn for purposes of computing future loss of earnings will be fixed at S$400. The award for loss of future earnings would be S$19,663 (multiplicand) x 10 (multiplier) = S$196,630; (4) the plaintiff's claim for S$1,000 for the total loss of his motorcycle would be allowed. The court rejected the defendant's submission that the plaintiff had not mitigated his loss by trying to recover his motorcycle from the police vehicle pound and which was exposed to the elements. This was because the plaintiff was in hospital for three months recovering from his injuries which made it difficult for him to take action; (5) there was no reason why a plaintiff who benefits from traditional medicine and Western medicine should not recover the costs of the herbs and balms. The use of herbs to supplement conventional medicine, the faith in it and the benefits from it were not tales told for special damages of S$600; (6) the nature of the injuries justified the presence and services of his wife. He was entitled to claim S$1,200 for the loss of his wife's earnings; (7) there would not be an award for the wife's travelling expenses as the court was bound by the decision of Teng Ching Sin v Leong Kwong Sun [1994] 1 SLR 758; (8) the injuries should be taken in such a manner that the approach would not result in overlapping which could not be easily quantified or the plaintiff being under-compensated. The award for pain and suffering and loss of amenities will be S$110,000.Digest :
Kuan Kian Seng v Wong Choon Keh Suit No 2059 of 1992 High Court, Singapore (KS Rajah JC).
719 Personal injuries -- Spinal injuries and paralysis
6 [719]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal injuries and paralysis Arms, hands, trunks and lower limbs Personal injuries Spinal cord Fracture of cervical vertebra Paralysis.Summary :
The plaintiff, suing by his next friend, claimed damages for personal injuries sustained in a collision between himself and a car driven by the defendant as a result of which he suffered a serious injury to his spinal cord involving a fracture of the sixth cervical vertebra. This resulted in a paralysis of the muscles of the forearms and hands, the trunks and the lower limbs. There was a loss of sensation in the back of the intercostal space. The hands were clawed and useless, the lower limbs were flexed at the knee and hip joint and were in a state of intermittent spasms. As a result of his injury the plaintiff was reduced to such a state of helplessness that he was unable to perform the simplest function independently of aid and attention. At the time of the accident the plaintiff was about 20 years old. He was accepted as a student teacher at the Day Training Centres, Malacca, for teachers and had it not been for the accident would have commenced his course on 1 April 1964. From the evidence, the court found that the defendant was solely to blame for the accident. On the question of quantum of damages,
Holding :
Held
: (1) the plaintiff had to be compensated somehow for the loss of earning capacity and the amenities of life during his remaining life expectancy; (2) taking all relevant matters into consideration, a sum of RM110,000 would be an appropriate figure for general damages, being a sum of RM70,000 for loss of amenities and RM40,000 for loss of earning.Digest :
Hamid bin Awang v Yeo Kim Kuan [1966] 1 MLJ 129 High Court, Malacca (Ismail Khan J).
720 Personal injuries -- Spinal injuries and paralysis
6 [720]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal injuries and paralysis Injuries to cervical spine Paralysis from waist downwards.Summary :
The plaintiff, a 30-year-old skilled carpenter, was employed by the defendant. On 4 March 1974, while engaged in fixing the roofing of a factory in Ayer Keroh, Malacca, he fell down and sustained serious injuries. As a result of the injuries to his cervical spine, he became paralyzed waist downwards and was confined to the wheel chair. His medical report indicated that his injuries were of a permanent nature and that he was unlikely to use his lower limbs and it was obvious that he would never walk again. The court awarded: (i) Special damages as agreed RM27,365; (ii) For pain and suffering and loss of amenities as agreed RM70,000; (iii) Total loss of future earnings calculated at RM240 per annum, calculated by 20 years multiplier RM35,895; Total at 100% liability RM133,260. As the court assessed his contributory negligence at 40%, the plaintiff would only recover 60% of the total award which amounted to RM79,956. In addition, the plaintiff was allowed interest and costs at the usual rates.
Digest :
Ho Teck Fah v Looi Wah t/a Looi Construction [1981] 1 MLJ 162 High Court, Malacca (Wan Yahya J).
721 Personal injuries -- Spinal injuries and paralysis
6 [721]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal injuries and paralysis Leg shortening Paralysis Injury to thoracic vertebra and leg shortening 2 cm Plaintiff aged 64 years old.Summary :
The plaintiff sustained spinal injuries, resulting in paralysis from the waist down. She also suffered a 2 cm shortening of a leg. The plaintiff claimed damages while the defendant disputed liability.
Holding :
Held
: (1) in the circumstances, the defendant is liable to the plaintiff who was not guilty of any contributory negligence; (2) (e) laceration of right elbow: RM300. All the sums mentioned above would carry 8% interest per annum from date of service to date of satisfaction; (3) general damages: (a) fracture of a thoracic vertebra causing paralysis from the waist down: RM70,000; (b) fracture of tibia and fibula and 2 cm shortening: RM6,000; (c) loss of expectation of life: RM2,000; (d) pain and suffering in connection with bladder washings: RM7,000;special damages: (a) cost of nursing care for 1983: RM200 pm; (b) cost of nursing care for 1984: RM250 pm; (c) from 1 January 1985 to date of judgment: RM300 pm; (d) cost of future nursing care at five years' purchase: RM350 pm; (e) cost of wheelchair: RM420; (f) cost of surgery already incurred: RM2,808; (g) cost of washing bladder at five years' purchase: RM150 pm; (h) travelling expenses also awarded. All the above sums would carry interest at 4% per annum from date of accident to date of judgment and thereafter at 8% per annum until satisfaction.Digest :
Lee Ann v Mohamed Sahari bin Zakaria [1987] 1 MLJ 252 High Court, Muar (Peh Swee Chin J).
722 Personal injuries -- Spinal injuries and paralysis
6 [722]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal injuries and paralysis Loss of sexual function Spinal injuries and paralysis Sum awarded $177,305.Summary :
The plaintiff, aged 30, was employed by the first defendants as a labourer to unload goods from their lorries on the quayside into the holds of tongkangs. The first defendants had hired two mobile cranes from the second defendants. The third defendant was the owner of the cranes one of which was driven by one Teng. On the day of the accident, the plaintiff was in the tongkang carrying out his duties in the unloading when the said Teng in the course of lowering cartons of milk stacked on a pallet into the tongkang, lowered it on the person of the plaintiff thereby causing the following injuries: (i) Fracture-dislocation of the first lumbar vertebra on the second lumbar vertebra; (ii) Complete transection of the lower end of the spinal cord and nerve roots; (iii) Total paralysis of all modalities of sensation from the level of tenth thoracic dermatome downwards (level of waist and umbilious). There was complete motor paralysis and loss of voluntary control of bladder and rectal functions. The plaintiff also lost sexual function and he claimed for damages for personal injuries and consequential loss suffered by him against all three defendants or any of them arising out of a duty of care. In the alternative, the plaintiff also claimed against the first defendants for failing to take reasonable care for the safety of their servant.
Holding :
Held
: (1) the accident was caused through the negligence of the crane driver and/or the signalman, both employees of the second defendants; (2) the first defendants had failed in their duty to the plaintiff as his employers to take reasonable care for his safety as their servant as they did not provide and maintain a safe system of work for their employees; (3) the first and second defendants were equally to blame. Judgment for the plaintiff in the sum of S$177,305 and costs, such damages and costs to be equally borne by the two defendants.Digest :
Wee Peng Whatt v Singapore Transport Supply Services Pte Ltd & Ors [1978] 1 MLJ 192 High Court, Singapore (Rajah J).
Annotation :
[Annotation:
The decision of the High Court was affirmed by the Court of Appeal on 18 April 1978.]723 Personal injuries -- Spinal injuries and paralysis
6 [723]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spinal injuries and paralysis Promotional prospects Pension Personal injuries Loss of amenities and pain and suffering Loss of future earnings Whether service pension to be taken into consideration in assessing damages Fracture and dislocation of spine Complete paralysis of lower part of body Paralysis of body Paralysis of ordinary bowel, bladder and sexual functions Calibre and standing of victim.Summary :
In this case, the plaintiff had met with a motor car accident. He sustained severe injuries resulting in the complete paralysis of the lower part of his body. He suffered from a fracture-dislocation of the spine and as a result was unable to use both the lower limbs and the muscles of the belly. There was complete paralysis of ordinary bowel, bladder and sexual functions. The defendant admitted liability and the only matter in dispute was the amount of general damages. The plaintiff was at the time of the accident State Secretary, Perak.
Holding :
Held
: (1) in a case like the present, the plaintiff's real loss was not so much his physical condition as the loss of those opportunities to lead a full and normal life which were now denied to him by his physical condition and for what he will suffer from being unable to do so; (2) after taking into consideration all the circumstances and possible contingencies, a sum of RM80,000 should be awarded as a reasonable compensation for loss of amenities and pain and suffering; (3) the amount to be awarded for loss of future earnings in this case should be RM110,000; (4) the pension awarded to the plaintiff by the government should not be taken into account in assessing the damages at common law.Digest :
Raja Mohktar bin Raja Yaacob v Public Trustee, Malaysia [1970] 2 MLJ 151 High Court, Kuala Lumpur (Raja Azlan Shah J).
724 Personal injuries -- Spine
6 [724]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spine Degenerative prolapsed disc Unable to lift weights Fit for light work onlySummary :
The plaintiff suffered an injury to his back whilst carrying heavy loads over a long period whilst in the defendants' employment. He suffered a degenerative prolapsed disc at L5/S1 level and spinal stenosis. According to the specialist the plaintiff was unable to lift weights, and stand or sit for long periods but was fit for light work. The court found for the plaintiff on the issue of liability and proceeded to hear arguments on the question of quantum of damages.
Holding :
Held
, ordering accordingly: (1) the damages for pain, suffering and loss of amenities would be S$18,000. This was a suitable figure taking into account the fact that the plaintiff had undergone two operations and the pain and sufferring involved and the fact that he had a problem with his nerve roots; (2) there would be no award for loss of future earnings or earning capacity. The plaintiff had been offered a job with immediate effect by the defendants at his last drawn salary. The risk of the plaintiff losing his job in this case was negligible. He had already worked more than 15 years with the defendants, an established company. They had requested him to return to work by giving him a light job.Digest :
Krishnan v Chartered Industries of Singapore Pte Ltd Suit No 530 of 1987 High Court, Singapore (Amarjeet Singh JC).
725 Personal injuries -- Spine
6 [725]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spine Fracture of thoraic vertebrae Loss of earnings Unable to find work MultiplierSummary :
The plaintiff's motorcar was involved in a chain collision with the vehicles driven by the first and second defendants. As a result of the accident the plaintiff suffered a compression fracture of the 8th thoracic vertebrae. She sued for damages. The fracture had resulted in the plaintiff suffering from backaches on prolonged sitting. The condition would be permanent as there was permanent deformity to the vertebral body. As a result of her residual disability, the plaintiff's employment was terminated. At the time of the accident the plaintiff was earning S$2,925 as a sales manager.
Holding :
Held
, allowing the claim: (1) the second defendant was wholly to blame for the accident; (2) for the fracture of the thoracic vertebrae resulting in backache, S$12,000 was awarded for pain and suffering; (3) the plaintiff's earnings plus CPF would be about S$3,600 per month. She was unable to obtain employment after her services were terminated. She was awarded six months' full salary from the date of her termination. After that the plaintiff was selective in her search for a job. Her loss would therefore be assessed at S$1,500 per month till the date of trial; (4) at the date of trial the plaintiff was 48 years old. Her future loss was assessed at S$1,500 per month for six years.Digest :
Wong Poh Ling v Ng Gong Kow & Anor Suit No 4162 of 1986 High Court, Singapore (Goh Joon Seng J).
726 Personal injuries -- Spine
6 [726]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spine Multiple injuries Spine and multiple injuries Wedge-compression fracture General damages awarded $22,000.Summary :
The plaintif in this case was a twenty-year-old despatch clerk. He suffered the following injuries as a result of a motor accident: pain in the spine and chest, a small laceration over the left eyebrow, wedge-compression fractures of the second, third and fourth lumbar vertebrae, and a fracture of the right ischiopubic ramus. He was hospitalized for 12 days. Liability was found to be 50/50. There was no claim for special damages.
Holding :
Held
: (1) (iii) fracture of right pelvis RM4,500, (iv) osteoarthritic changes RM2,000. The total sum was RM25,300; (2) general damages was assessed as follows: (i) laceration and permanent scar over left eyebrow RM800; (ii) wedge-compression fracture of three lumbar vertebrae with residual deformities RM18,000;the learned judge taking into consideration the element of overlapping, reduced the award to RM22,000. General damages was apportioned on a 50/50 basis.Digest :
Hamzah bin Abdul Ghani v Verghese Thomas [1981] 2 MLJ 329 High Court, Kuala Lumpur (Mohamed Azmi J).
727 Personal injuries -- Spleen
6 [727]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Spleen Leg Rupture of spleen Removal of spleen Fracture of femur Measure of damages.Summary :
The first respondent, a school girl aged seven years ten months, was knocked down by a car driven by the appellant while she was crossing a road with three other girls on their way to school. As a result of this accident, she suffered a fracture of the left femur and a rupture of the spleen. According to the medical report 'the removal of the spleen might be of quite serious consequences were the person to suffer from malaria or other blood dyscrasia'.
Holding :
Held
: damages at S$6,000 to cover a fracture of the left femur and loss of a spleen was a proper sum to award.Digest :
Abraham v Choo Jit Fung & Anor [1966] 1 MLJ 97 Federal Court, Singapore (Barakbah CJ (Malaya).
728 Personal injuries -- Standardization
6 [728]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Standardization Quantum Running-down cases Civil Law Ordinance 1956.Summary :
Per curiam:
'There can be no question of standardizing damages in these running-down cases coming under the Civil Law Ordinance. Nevertheless we are endeavouring to scrutinize such of them as come before us on the same principles. That is in the benefit of the public as a whole because obviously if insurance companies and practitioners have some idea as to how these cases will ultimately be dealt with here it should facilitate settlements.'Digest :
Seenivasan & Anor v Lim Yew Seng [1961] MLJ 22 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).
729 Personal injuries -- Status of plaintiff
6 [729]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Status of plaintiff Whether to be taken into account Personal injury Special and general damages claimed Victim member of State Legislative Assembly Whether such position did raise his status Whether to be taken into account in assessing damages.Summary :
The plaintiff, a member of the Pahang State Legislative Assembly, sustained a fracture of his right leg as a result of being pinned between his car and a taxi. The plaintiff claimed RM2,780 as special damages and RM50,000 as general damages. The defence admitted liability but disputed the quantum of damages.
Holding :
Held
: (1) the special damages should be assessed at RM400; (2) the plaintiff was only entitled to RM20,000 general damages as he was an ordinary member of the public and did not hold any special position in business or society. Being an elected member of the State Legislative Assembly did not raise his status to any great extent and a permanent limp did not reduce his ability as a member of the State Legislative Assembly or his social standing.Digest :
Zainuddin v Liew Pak Fun & Anor [1962] MLJ 247 High Court, Kuantan (Hashim J).
730 Personal injuries -- Subsequent death from injuries
6 [730]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Subsequent death from injuries Loss of amenities Personal injuries Plaintiff dying after delivery of judgment.Summary :
This was an appeal against the judgment of Ismail Khan J reported at [1966] 1 MLJ 129. After the delivery of the judgment, the plaintiff succumbed to his injuries from the accident and died.
Holding :
Held
: (1) (ii) the amount for loss of amenities must be limited to the period when the plaintiff was alive; (2) in this case, as the plaintiff had died: (i) the amount for loss of future earnings must be set aside;the damages should be reduced from RM113,845 to RM16,732.50 being a sum of RM13,383.75 as general damages and RM3,348.75 as special damages.Digest :
Yeo Kim Kuan v Hamid [1968] 2 MLJ 188 Federal Court, Kuala Lumpur (Azmi CJ (Malaya).
731 Personal injuries -- Subsequent death from injuries
6 [731]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Subsequent death from injuries Motor accident Infant fell from moving bus Death occurred nine years after accident Several items added for special damages Objections overruled.Summary :
The plaintiff infant sued the defendant through his father and next friend for damages arising out of a motor accident. The infant was seven years old at the time of the accident and some nine years later, he died from the injuries he had received. The facts revealed that the infant was boarding the defendants' motor bus when it moved, causing the infant to fall and suffer serious injury.
Holding :
Held
: the plaintiff was awarded RM65,000 for pain and suffering and loss of amenities and special damages comprising RM2,000 for nursing, RM750 for nourishing food, RM15 for clothes, RM35 for bag and books and RM1,500 for transport expenses. Funeral expenses and the cost of extracting letters of administration were agreed at RM1,250 and RM350 respectively. No award was made for loss of future earnings as there was insufficient evidence to do so.Digest :
Tham Meng Fatt v Utam Singh Omnibus Co Ltd [1982] 2 MLJ 355 High Court, Seremban (Ajaib Singh J).
732 Personal injuries -- Subsequent death from injuries
6 [732]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Subsequent death from injuries Pain and suffering General and special damages for the benefit of deceased's wife and children Negligence Stationary trishaw Vehicle running into.Summary :
This was a claim based on the principle of res ipsa loquitur. The driver of a lorry belonging to the defendant was, on the night of 27 September 1950, driving along Victoria Street towards the Happy World when suddenly a figure ran in front of his vehicle from the right hand side. The driver immediately braked and swerved to the left but not in time to avoid the pedestrian who was struck and knocked down. Thereafter the vehicle swerved to the left and ran into the back of a stationary trishaw in which the deceased was sitting near the pavement. The trishaw was carried a considerable distance by the violence of the impact and the deceased received multiple injuries from which he subsequently died. It was not denied that the defendant's driver was acting within the scope of his employment at the time of the accident. The only issue was whether the accident was in fact occasioned by the driver's negligence and, if so, what damages the plaintiff was entitled.
Holding :
Held
: on the evidence, the driver's negligence is manifest and on this issue the plaintiff must succeed. 'The deceased was conscious for nearly three days before his death and his estate is entitled to damages for the pain and suffering he underwent during this period' per Knight J.Digest :
Yap Kim Chye & Anor v Seow Seng Choon [1952] MLJ 168 High Court, Singapore (Knight J).
733 Personal injuries -- Trend of awards
6 [733]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Trend of awards Overlapping Personal injuries Reduction of sum awarded as being out of line with trend in reasonably comparable cases.Summary :
The appellants/defendants appealed against the quantum of damages awarded in favour of the respondent/plaintiff who suffered injuries in a road accident. The learned trial judge held the first defendant/respondent two-thirds to blame and the plaintiff/appellant one-third to blame for the accident. There was no appeal against this finding. The learned judge awarded RM9,000 for general damages and RM250 for special damages. He took into account the facts of the case and the principle that general damages should be in line with a discernible upward trend of damages in reasonably comparable cases. He awarded RM3,000 for the fracture of the plaintiff's ankle bone and RM6,000 for the pain and suffering and loss of amenities for the fracture of the hip joint, his permanent disabilities and osteoarthritis and the longer years of the plaintiff's suffering.
Holding :
Held
, allowing the appeal: (1) the award of general damages in this case was so out of line with the trend in reasonably comparable cases that it was competent for the Federal Court to interfere with it; (2) the learned judge should not have taken compensation for each of the two injuries suffered by the respondent separately and added them up at the end. The items are not separate heads of compensation. They are only aids at arriving at a fair and reasonable compensation. There is an element of overlapping when two or more injuries are suffered simultaneously; (3) accordingly, therefore, the quantum of general damages was reduced from RM9,000 to RM6,000.Digest :
Mahamad bin Mahamad Said & Anor v Perianayagam & Anor [1972] 1 MLJ 67 Federal Court, Kuala Lumpur (Suffian, Ali and Ong Hock Sim FJJ).
734 Personal injuries -- Upper limbs
6 [734]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Upper limbs Forearm injury Resignation from employment because of injury No break in chain of causation Assessment of pre-trial and future loss of earningsSummary :
The defendants appealed an order of the assistant registrar awarding the plaintiff pre-trial loss of earnings totalling S$84,330 and future loss of earnings totalling S$48,000 as a result of a motorcycle accident caused by the defendants' negligence, in which he suffered degloving injuries to his right forearm with almost complete avulsion of the skin and contusions to the muscle. The plaintiff, a 46-year-old general worker, was resident in Johore Bahru and travelled to work each day in Singapore. He had been with the company for more than two decades and notwithstanding earlier injuries to his hand and the dangers of the job, returned to work after the accident although he found he could no longer fulfill some of the requirements of the job as a result of his weakened grip and restricted movement. The plaintiff resigned his employment and brought an action against the defendants. Damages were assessed and the defendants appealed the awards for pre-trial and future loss of earnings.
Holding :
Held
, dismissing the appeal with costs: (1) there was no break in the chain of causation and the plaintiff's decision to resign was as a result of the injuries he suffered. Medical evidence supported the finding of the assistant registrar that the injuries suffered were the cause of his resignation and loss of earnings; (2) the question was whether the plaintiff was entitled to the quantum of compensation for the injuries. The assistant registrar did not err in her assessment of the pre-trial loss of earnings and the assessed sum of S$84,330 would stand; (3) and (c) the plaintiff's previous job; (4) the following factors were considered in assessing the plaintiff's future loss of earnings: (a) the fact that there would be a one-time lump sum payment; (b) the exigencies of life;future loss of earnings were assessed using a multiplier of 4 and a multiplicand of S$1000 ΄ 12 for an assessed sum of S$48,000.Digest :
Tahir bin Abdul Hadi v Lim Soo Peng & Anor Suit No 1076 of 1988 High Court, Singapore (KS Rajah JC).
735 Personal injuries -- Vicarious liability
6 [735]
DAMAGES (PERSONAL INJURY OR DEATH) Personal injuries Vicarious liability Occasional driver Driving on order of car owner Whether acting as servant or agent.Summary :
This was an action for the recovery of damages which arose out of a road accident in which the second defendant's car and a motor cycle ridden by one HWL and the second plaintiff as pillion rider were involved. As a result of the accident, HWL was killed and the second plaintiff suffered personal injuries. The second plaintiff was awarded RM5,000 general damages and RM685 special damages.
Digest :
Su Key & Ors v Shanmugam & Anor [1966] 1 MLJ 98 High Court, Kuala Lumpur (Gill J).
736 Quantum -- Ankle
6 [736]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Ankle Fracture of Permanent disabilitiesSummary :
Case name
: Francis Ouyang Yong Hua v Lim Eng Keng Suit no: DC Suit No 3174 of 1987 Coram: David Lim, Deputy Registrar Date of hearing: 23 January 1989 Date of accident: 25 August 1985 Age of plaintiff: 35 years old Brief description of injuries: (a) Multiple laceration of 2cm-9cm size over the dorsum of right foot and leg. Toilet and suture was done (b) Closed fracture of the right medial malleolus which was treated conservatively in a plaster cast (c) Open fracture of the third metatarsal. Toilet and suture was done (d) Cut peroneus longus tendon and extensor digitonium profundus to the third toe. These were repaired Disabilities: (a) Permanent multiple ugly scars (b) Stiffness left ankle with limitation l0‘ to full dorsiflexion which will make rapid ambulation and ambulation on uneven ground difficult Liability: Admitted Award: (1) General damages - pain and suffering and loss of S$ 13,900 amenities - loss of earning capacity S$ 10,000 (2) Special damages - agreed S$ 850 - past loss of earnings S$ 6,600 Interest: 6% pa from date of writ to date of judgment except for award for loss of earning capacity. Authorities cited: Khoo Lai Beng v Syarikat Binaan [1988] 2 MLJ xxix; Abdullah bin Ahmad v Cheng Meng Chee [1988] 1 MLJ xxxviii; Udhayakumar s/o Vadivelu v Chin Kon Tai [1986] 1 MLJ lii; Santokh Singh s/o Kamail Singh v SBS [1982] 2 MLJ xlviii; K Selvaraja v SBS [1979]1 MLJ xxxviii; Chan Chook How v Tan Nyoke Hoe [1979] 1 MLJ xxxix; Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132; Pang Chin Hoy v Tan Chin Kee (DC Appeal No 76 of 1987) (unreported).Digest :
Francis Ouyang Yong Hua v Lim Eng Keng DC Suit No 3174 of 1987 David Lim, Deputy Registrar
Annotation :
[Annotation:
On appeal before Mr Liew Thiam Leng, District Judge, on 3 March 1989, the award for past loss of earnings was reduced to S$6,000.]737 Quantum -- Arm
6 [737]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Arm Fracture of distal end of radius and right ulner Fracture of nasal boneSummary :
[*TABLE FRAME="ALL" COLSEP="1" ROWSEP="0" ORIENT="PORT" PGWIDE="1" CELLCONT="CONTINUED"]
[*TGROUP COLS="2" ALIGN="LEFT"]
[*COLSPEC COLWIDTH="5"]
[*TBODY VALIGN="TOP"]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Case name:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Sherman a/l Apponna & Anor v Wong Chin Hoe[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Suit no:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]S 53-843-94[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Coram:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Sessions Court, Shah Alam (Sulaiman bin Ismail J)[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Date of hearing:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]5 December 1996[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Date of accident:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]28 October 1994[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Brief description of accident:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Collision between motorcyclist riden by the first plaintiff and motorcar driven by the defendant near the mouth of a `Y' junction.[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Age of plaintiff:(a) at date of accident:(b) at date of hearing:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]18 years old 20 years old[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Occupation(s):(a) at date of accident:(b) at date of hearing:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]StudentMarketing co-ordinator[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Earnings:(a) at date of accident:(b) at date of hearing:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]NoneRM1,200[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Brief description of injuries:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"](a)Closed fracture of the distal end of (R) radius.(b)Fracture of right ulnar styloid process.(c)Fracture of nasal bone.(d)1 broken tooth.[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Disabilities:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"](a)Pain in right wrist on exertion.(b)Wasting of right upper limb.(c)Limitation of movement of right forearm and right wrist joint.(d)Weakness of right hand grip and inability to lift heavy objects with right hand.[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Liability:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]100% against defendant.[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Award:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"](1) Special damages agreed at RM650 (2) Global award for general damages at RM21,500[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Interest:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Special damages at 4% from date of accident to date of decision.General damages at 8% from date of service of summons to decision. Post judgment interest at 8%.[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Authorities cited:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Rodburn v Kemp [1971] 3 All ER 249; Yahoya bin Mohammed v Chin Tuan Nam [1975] 2 MLJ 117; Chow Kay Kong v Ching Tong & Ors [1967] 2 MLJ 31; Harcharan Singh v Hassan bin Ariffin [1990] 2 CLJ 339; Ngooi Kin Chong v Subramaniam [1990] 1 CLJ 799; Rohani binti Mamat v Wan Ismail bin Wan Talib [1990] Mallal's Digest 507; Kazamaidin bin Shaik Dawood v Lee Beng Hwa [1993] Mallal's Digest 729; Aik Ming (M) Sdn Bhd & Ors v Chong Ching Chuen & Ors [1995] 2 MLJ 770; Stralingam a/l Periasamy v Periasamy [1995] 3 MLJ 397; Lew Voon Kong & Anor v Mustaffa bin Kamir [1978] 1 MLJ 62; Kek Kek Leng v Teresa Bong Nguk Chin & Anor [1978]1 MLJ 62; A Perianayagam & Anor v Yeo Suan Tin & Anor [1984] 1 MLJ 214; Liong Thoo v Sawiyah & Ors [1982] 1 MLJ 286; Seow Gek Soo @ Yeo Gek Soo & Anor v Chian Mun Fook and [/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"][/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Ee Chye Heng v Chin Mun Fook [1989] 1 CLJ 985; Anggapan v Phua Kim Cheng, Administrator of Estate of Phua Teck Guan [1992] Mallal's Digest 899; Au Yong Mee Yong & Ors v Hoo Ah Bee & Anor [1994] 3 MLJ ccxxxiii; [1995] Mallal's Digest 883; Kazamaidin bin Shaik Dawood v Lee Beng Hwa & Anor [1993] Mallal's Digest 729; Gwee Chiew Guat v Tan Liang Gek [1989] Mallal's Digest 711.[/ENTRY][/ROW][/TBODY][/TGROUP][/TABLE]
Digest :
Sherman a/l Apponna & Anor v Wong Chin Hoe Suit No 53-843-94Sessions Court, Shah Alam (Suleiman bin Ismail J).
738 Quantum -- Arm
6 [738]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Arm Lacerations ScarsSummary :
Case name:
Lee Poh Cheok & Anor v Soh Sai Teh Suit no: DC Suit No 6599 of 1989 (District Court, Singapore) Coram: Hamzah Moosa, District Judge Date of hearing: 11 February 1993 Date of accident: 10 January 1989 Age of second plaintiff: 28 years old Occupation of second plaintiff: Insurance agent Brief description of injuries: Second plaintiff (a) 5mm laceration of right little finger (b) Jagged 3cm laceration over right arm (c) Excision of the foreign body granuloma over the dorsum of the right little finger over the metacarpophalangeal joint Disabilities: (a) Permanent 5cm jagged keloid scar over posterior of right elbow (b) Permanent 3cm scar over posterior aspect of promixal third of right forearm with multiple small scars around it (c) Permanent 2cm scar over dorsum of metacarpophalangeal joint of the right little finger. Small foreign bodies are palpable in the scar Liability: Defendant 60% liable; first plaintiff 40% liable. Award: First plaintiff (1) Special damages - (agreed) S$ 2,606 Second plaintiff (1) General damages - pain and suffering S$ 6,500 (2) Special damages - (agreed) S$ 439 Interest: 6% pa from date of writ to date of judgment. Authorities cited: Arumugam Chandrakumar v Supa'ad bin Sahid 1991 MMD [Feb] 181; Chua Poh Suan v Samad bin Saban 1991 MMD [Sep] 1031.Digest :
Lee Poh Cheok & Anor v Soh Sai Teh DC Suit No 6599 of 1989 District Court, Singapore (Hamzah Moosa, District Judge).
739 Quantum -- Back
6 [739]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Back Lower back contusion Bruise on kneeSummary :
Case name
: Peter Martin v Tan Wee Cheng Suit no: MC Suit No 13279 of 1991 (District Court, Singapore) Coram: Tham Tong Kong, Deputy Registrar Date of hearing: 25 and 26 May 1992 Date of accident: 12 January 1991 Nature of accident: Road traffic accident Age of plaintiff: 35 years old at time of accident Occupation: Management consultant Brief description of injuries: (a) Mild lower back contusion and bruise on right knee Liability: Defendant 100% liable. Award: (1) General damages - contusion and bruise S$ 800 (2) Special damages S$ 4,082.16 Interest: 6% pa from date of writ to date of judgment. Authorities cited: Abdullah bin Muhamad v Lakhbir Singh a/l Jadgar Singh [1988] 1 MLJ xxxiii; Ng Cheen Wee v Sim Mong Seng 1989 BLD [Feb] 210; Swee Yong Huat & Anor v Pang Khee Tin & Anor 1989 BLD [Feb] 211; Tan Meng Hua v Singapore Bus Services (1978) Ltd 1990 BLD [Dec] 1234.Digest :
Peter Martin v Tan Wee Cheng MC Suit No 13279 of 1991 District Court, Singapore (Tham Tong Kong, Deputy Registrar).
740 Quantum -- Body and internal organs
6 [740]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Fracture of right humerus Acromia-clavicular joint subluxationSummary :
[*TABLE FRAME="ALL" COLSEP="1" ROWSEP="0" ORIENT="PORT" PGWIDE="1" CELLCONT="CONTINUED"]
[*TGROUP COLS="2" ALIGN="LEFT"]
[*COLSPEC COLWIDTH="5"]
[*TBODY VALIGN="TOP"]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Case name:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Tien Chian Foong v Ong Ee Jin[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Suit no:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]MC Suit No 14554 of 1995[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Coram:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Shaiffudin bin Saruwan, Deputy Registrar[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Date of hearing:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]10 January 1997[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Date of accident:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]9 July 1993[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Age of plaintiff:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]40 years old[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Occupation:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]Photographer[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Brief description of injuries:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"](a)Undisplaced fracture greater tuberosity right humerus.(b)Acromia-clavicular joint subluxation right side.[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Disabilities:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]There is a sub-acromial bursitis of the right shoulder and a frozen shoulder. Mild right ulnar nerve neuritis with hypoaesthesia over the ulnar one and half fingers but no motor weakness.[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Liability:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]100%[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Awarded: (1)General Damages:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"][/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]-Fracture Humerus -Acromio Clavicular joint -Loss of earning capacity[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]S$7,000.00 S$12,000.00 S$10,000.00 S$29,000.00[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"](2)Special damages[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]S$49,558.15[/ENTRY][/ROW]
[*ROW ]
[*ENTRY MOREROWS="0" ROTATE="0"]Interest:[/ENTRY]
[*ENTRY MOREROWS="0" ROTATE="0"]6% pa from date of writ of summons to judgment excluding Loss of earning capacity. Costs fixed at $6,500-00 excluding disbursements.[/ENTRY][/ROW][/TBODY][/TGROUP][/TABLE]
Digest :
Tien Chian Foong v Ong Ee Jin MC Suit No 14554 of 1995Magistrate's Court, Singapore (Shaiffudin bin Saruwan, Deputy Registrar).
741 Quantum -- Body and internal injuries
6 [741]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal injuries Rib injury Fracture of Double level fractures also present No clinical evidence of flail chestSummary :
Case name
: Faridah bte Zakaria v Chua Teng Lye & Anor Suit no: DC (T) No 9266 of 1986 Coram: Tan Seck Sam, District Judge Nature of accident: Road traffic accident Date of hearing: 3 May 1988 Age of plaintiff: 25 years old Occupation: Machine operator Brief description of injuries: (a) Multiple fractures of ribs (from 4th to 11th) in right chest (b) Rib fractures (from 6th to 11th) were also double level fractures, however, no evidence of flail chest (c) Hemoserous fluid accumulation in right lung drained away Liability: Defendants 40% liable; plaintiff 20% liable; driver of unknown vehicle 40% liable Award (on 100% liability): (1) General damages S$ 18,000 (2) Special damages S$ 174Digest :
Faridah bte Zakaria v Chua Teng Lye & Anor DC (T) No 9266 of 1986 Tan Seck Sam, District Judge
742 Quantum -- Body and internal organs
6 [742]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Abdominal injury Perforation of jejunum LacerationsSummary :
Case name
: Aw Tiong Beng v Chee Peng Heng Suit no: DC Suit No 6260 of 1988 Coram: Kevin Tan, Deputy Registrar Date of hearing: 15 November 1989 Date of accident: 20 November 1987 Age of plaintiff: 27 years old at time of accident Occupation: Lorry driver Brief description of injuries: (a) 2cm laceration over the right forehead (b) 2cm laceration over the right shin (c) Superficial abrasions over the right elbow (d) 1/2cm perforation of the jejunum with a tear in the adjacent mesentery (no residual disability) Award: (1) General damages - 2cm laceration over the S$ 1,700 right forehead - 2cm laceration over the S$ 900 right shin - superficial abrasions over S$ 400 the right elbow - 1/2cm perforation of the S$ 9,000 jejunum with tear in the adjacent mesentery (2) Special damages (agreed) S$ 3,858.50 Interest: 6% pa from date of writ until date of final judgment. Authorities cited: Ho Kiat v Ngo Siong Hong [1986] 1 MLJ xcii; Mahalingam a/l Varathan v Chan Chee Tuck [1987] 2 MLJ xx; Lee Cher Leong v Peh Kim Swee [1988] 2 MLJ xxvii; Tay Teck Hin & Ors v Yamaha Music & Anor (DC Suit No 4451 of 1988) (unreported); Rosyah bte Mohd Said v Tan Tiew Khoon (MC Summons No 6448 of 1985) (unreported); Lim Wui Ying v Mehman Singh s/o Karam Singh (DC Summons No 6924 of 1985) (unreported); Noor Azan bte Bari v Kaw Teck Guan 1989 BLD [Oct] 1416; Jamalah bte Mohd v Ng Fook Seng [1982] 2 MLJ xiviii; Chua Teck Lah v Chua Seow Chen [1988] 1 MLJ xxvi; Pausi bin Mahya v Foo Chee Sin (Suit No 2154 of 1968) (unreported).Digest :
Aw Tiong Beng v Chee Peng Heng DC Suit No 6260 of 1988 Kevin Tan, Deputy Registrar
743 Quantum -- Body and internal organs
6 [743]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Fracture of humerus Haematoma of left knee Surgical scarSummary :
Case name
: Teo Ah Pong v Neo Bock Hua & Anor Suit no: DC Suit No 2405 of 1990 (District Court, Singapore) Coram: Low Wee Ping, District Judge Date of hearing: 7 January 1992 Date of accident: 13 February 1989 Age of plaintiff: 55 years old Occupation:[T[Dish washer Earnings: S$720 per month Brief description of injuries: (a) Comminuted, intra-articular fractures of the distal part of the right humerus which was operated and fixed with two metal plates, one isolated screw and some wires (b) Haematoma of the left knee Disabilities: (a) 16cm surgical scar over the back of right elbow (b) Right elbow motion is from 50‘ to 100‘ flexion, whereas the normal left elbow is from 0‘ to 130‘ flexion (c) Weakness of the right upper limb Liability: Plaintiff 20% liable; defendant 80% liable. Award (on 100% basis): (1) General damages fracture right humerus with disabilities S$ 6,500 haematoma of left knee S$1,00 loss of earning capacity S$ 2,000 future costs of surgery S$ 800 (2) Special damages (agreed) S$ 523 Interest: 6% pa on general damages (except future loss) and special damages from date of service of writ to date of judgment.Digest :
Teo Ah Pong v Neo Bock Hua & Anor DC Suit No 2405 of 1990 District Court, Singapore (Low Wee Ping, District Judge).
744 Quantum -- Body and internal organs
6 [744]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Fracture of right humerus Fracture of ribs Partial disabilitiesSummary :
Case name
: Chi Jau alias Er Ah Jau v Lee Kok Bing (t/a Lee Kok Bong Building Construction) & Anor Suit no: Suit No 1214 of 1988 Coram: Judith Prakash JC Date of hearing: 23 June 1992 Date of accident: 11 July 1986 Nature of accident: Plaintiff was working at the Ang Mo Kio MRT work site when he fell from the work platform to the ground 5m below. Age of plaintiff: 36 years old at the time of accident Occupation: Construction site carpenter Earnings: S$1,251.38 per month Brief description of injuries: (a) Comminuted fracture of upper third of right humerus and scar (b) Open condylar fracture of right humerus, fracture of right olecranon, osteoarthritis and scars (c) Fractures of 8th and 11th ribs (d) Fracture of L4 transverse process Disabilities: (a) Inability to carry heavy objects because of pain in right arm (b) Restriction of movement in right elbow and inability to flex properly (c) Stiffness of shoulder making it difficult to climb up and down ladders (d) Pain in back when bending, doing strenuous work and on rainy days (e) Work efficiency reduced and cannot do prolonged work Liability: Defendants two-thirds liable, plaintiff one-third liable. Award: (1) General damages pain, suffering and loss of amenitie S$ 42,000.00 loss of future earnings S$ 43,200.00 (2) Special damages pre-trial loss of earnings S$ 44,921.32 agreed special damages for expenses incurre S$ 275.60 Interest: 6% pa on the sum of S$28,180.91 and at 3% pa on S$29,944.55 from date of writ to date of judgment. Authorities cited: Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 3 MLJ 144 (refd); Chow Khai Hong v Tham Sek Khow & Anor [1992] 1 SLR 4 (refd).Digest :
Chi Jau alias Er Ah Jau v Lee Kok Bing (t/a Lee Kok Bong Building Construction) & Anor Suit No 1214 of 1988 Judith Prakash JC
745 Quantum -- Body and internal organs
6 [745]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Laceration of left parietal regionSummary :
Case name
: Loh Kum Foo v Ho Chee Eng Suit no: MC Suit No 11529 of 1990 Coram: Daphne Hong, Deputy Registrar Date of hearing: 30 December 1991 Age of plaintiff: 64 years old at time of accident Brief description of injuries: (a) 10cm laceration over the left parietal region (b) 0.2cm diameter abrasion right cheek (c) 0.5cm diameter abrasion right elbow (d) 0.5cm diameter abrasion right mid-forearm extensor aspect (e) 0.5cm diameter abrasion dorsum of right hand Liability: Defendants 100% liable (agreed). Award: (1) General damages - item (a) S$ 1,800 - items (b) to (e) S$ 300 (2) Special damages - (agreed) S$ 425.75 Interest: 6% pa from date of writ to date of judgment; 8% thereafter. Authorities cited: Teo Chin Gee (infant) v Teo Peng Chan 1989 BLD [Jun] 819; Chan Geok Chwee Gerard v Singapore Bus Services (1978) Ltd 1989 BLD [Jun] 821; Teo Siok Cheng v Singapore Bus Services (1978) Ltd & Anor 1990 BLD [Mar] 225; Tay Cheng Yan v Tock Hua Bin 1990 BLD [Jun] 553; Ang Teck Lye v Loy Eng Loon 1991 MMD [Jan] 63; Chua Poh Suan v Samad bin Saban 1991 MMD [Sep] 1031; Wong Ching Wah v Kang Keith & Anor 1991 MMD [Mar] 285; Balakrishnan v Savastine Anthony & Anor 1991 MMD [Mar] 286; Gan Put & Ors v Ismail bin HJ Mahsin & Anor 1990 BLD [Nov] 1127; Tay Lye Tin & Ors v Yamaha Music (Asia) Pte Ltd & Anor 1990 BLD [May] 451; Leha bte Said v Ng Beng Guan 1990 BLD [Feb] 141; Tan Meng Hua v Singapore Bus Services (1978) Ltd 1990 BLD [Dec] 1234; Liem Sioe Peng v Tan Kian Hock 1989 BLD [Dec] 1627; Amil bin Mohd Dene v Low Keng Yuen & Anor 1989 BLD [Sep] 1280; Goh Chin Choon & Anor v Toh Quee Beng 1989 BLD [Feb] 212; Swee Yong Huat & Anor v Pang Khee Tin & Anor 1989 BLD [Feb] 211.Digest :
Loh Kum Foo v Ho Chee Eng MC Suit No 11529 of 1990 Daphne Hong, Deputy Registrar
746 Quantum -- Body and internal organs
6 [746]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Loss of 3 inches of intestines Multiple lacerations and abrasionsSummary :
The plaintiff suffered injuries as a result of the collision between his bus and a lorry driven by the first defendant. He suffered loss of 3 inches of the intestines, multiple abrasions and lacerations, fracture of the right tibia and fibula and ugly scars around the abdomen and legs. General damages: RM16,000. Special damages: RM150.
Digest :
Mohamed bin Silong v Lim Yeok King & Anor [1979] 1 MLJ xxxix High Court, Kuala Lumpur (Abdul Hamid J).
747 Quantum -- Body and internal organs
6 [747]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Perforation of small intestine Swelling of abdomenSummary :
Liability was admitted by the defendant. After the accident the plaintiff was found with generalized tenderness over his lower abdomen. A laparotomy was performed and he was found to have a perforation of the ileum (small intestine) at a place 10 inches away from the ilacaceal junction and the repair was done. Post operatively, the wound in the small intestine became infected and was gaping. His abdomen was swollen. The plaintiff went for two further operations. However, the swollen abdomen persisted for a long time. Normal intake of food was delayed. The plaintiff was under considerable pain and suffering. Damages were awarded as follows: General damages: RM30,000. Special damages: RM3,500. The court also awarded loss of future earnings at RM260 per month at 12 years' purchase, such loss of earnings not carrying interest.
Digest :
Mahalingam a/l Varathan v Chan Chee Tuck [1987] 2 MLJ xx High Court, Ipoh (Peh Swee Chin J).
748 Quantum -- Body and internal organs
6 [748]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Pubic and collar bone injury Fracture of collar bone and pubic boneSummary :
The first plaintiff was a married woman, aged 29. She suffered fracture of the right clavicle, which united with overriding fragments resulting in a body prominence at site of fracture and movement of abduction at right shoulder was 135‘ instead of 180‘. Circumduction was limited to same extent. Fracture of left ischio pubic rami healed without loss in function. No future loss of earnings. Special damages: RM652.48. General damages: RM5,000 for arm injury; RM1,000 for pubic injury.
Digest :
Patimah bte Mat & Ors v Yong Ah Chak [1964] MLJ lxxiii High Court, Malacca (Ismail Khan J).
749 Quantum -- Body and internal organs
6 [749]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Pubic and urethra injury Fracture of pubis and ilium Laceration of female genitalia Rupture of posterior wall of urethraSummary :
The plaintiff was 13 years old at the time of the accident. She suffered the following injuries: (1) fracture (R) pubis and (R) ilium; (2) fracture neck (L) femur; (3) dislocation (R) hip; (4) extensive laceration of vagina; (5) rupture of urethra posterior wall. Her ability to have natural child birth would be nil in view of the badly distorted pelvic bone structure and she would need to undergo caesarian delivery. The plaintiff may also require repeated dilatation as stricture of the urethra due to trauma is likely to recur again and again. She walked with a limp. There was real shortening of the (L) lower limb by 1.5 cm but the apparent shortening was 3 cm. The learned judge found the defendants wholly liable and awarded the first plaintiff S$50,000 for general damages and S$2,570 for special damages (agreed).
Digest :
Ong Chai Kuan & Anor v Hong Guan Construction & Engineering Co (Pte) Ltd & Anor [1981] 2 MLJ clxxxii High Court, Singapore (Rajah J).
750 Quantum -- Body and internal organs
6 [750]
DAMAGES (PERSONAL INJURY OR DEATH) Quantum Body and internal organs Pubic injury Fracture of inferior ramus of pubic boneSummary :
Married woman, aged 66 at time of accident. Suffered fracture of the inferior ramus of the pubic bone and fracture of the right parietal bone. From an orthopaedic point of view, the fracture of the right inferior pubic ramus had united in its undisplaced position with minimal disability. Osteoarthritic changes were present in both hips. The accident could have aggravated the existing osteoarthritis in her hips. General damages: S$2,500 for the fracture of the pubic bone and S$2,000 for the fracture of the parietal bone. Special damages: S$40.
Digest :
Wong Joke Buay v Chan Eng Kian [1968] 1 MLJ xliii High Court, Singapore (Buttrose J).