Yang Salbiah

- vs -

Jamil Harun

Judgment

Raja Azlan Shah CJ (Malaya)

(delivering the judgment of the Court)

1. The appellant, Yang Salbiah Meor Rasdi (Salbiah) — the only appellant, despite the heading — is a very unfortunate young girl. She was run down by a bus and though the visible injuries sustained were a few abrasions and contusions, the end result was disastrous. She became, in that awful but very descriptive term, vegetative. She had in fact sustained severe traumatic cerebral damage and from being a happy normal healthy and intelligent school girl she has become a severely mentally retarded child, with very little awareness of her surroundings and no ability to respond socially or to control herself physically. She is unable to manage wilfully her bladder and her bowel functions.

2. Born on 10 May 1968 she was at the time of the accident, a bit more than seven years old. Four years later, just before the trial of the action at a neurological test conducted by a consultant, she was assessed at a mental age of three years. She is now a little better than a vegetable. Her condition is irreversible with hardly any prospects of improvement, but the poignancy of her situation is that her span of life is in no way shortened. Throughout the rest of her life — and one may reasonably expect that she will live out her normal span of life in this country — she will be unable to appreciate the world she lives in, to grow up to a gainfully employed life, or marry and bear children, otherwise to lead a normal healthy life and she will need constant care and attention and nursing.

3. Liability for the accident having been fully admitted by the defence, she must recover a substantial award for general damages to cover past, present and future injury and loss. Such an award is final and as remarked, “it is not susceptible to review as the future unfolds, substituting fact for estimate.” The award has to be a lump sum assessed at the conclusion of the legal process.

4. It is perhaps for this reason that her claim in the statement of claim delivered on her behalf was merely expressed to be for general damages with the usual prayer for interest and cost. But at the conclusion of the case, her counsel descended into some particulars and submitted that the award should be for

   1. pain and suffering and loss of amenities,

   2. future loss and

   3. nursing services.

   Her counsel however signally failed to lead any evidence of what this future loss would be or any evidence of the cost of the nursing services he had in mind or he was advised were available for the child. The trial judge, after hearing defendant’s counsel’s submission which let it be said, without disrespect, was equally of no assistance to the judge, awarded $75,000 as general damages with the “usual” order as to interest and costs. So far from being usual, it is in fact, unusual.

5. From his grounds of decision supplied subsequently, this sum was awarded on a global basis, because, in his view, “the general trend in cases of this sort showed an inclination towards an award of a global sum which would, however, take into account all these three cases.” By the three cases, he obviously meant the three heads of claim referred to in counsel’s submission.

6. A global award has the distinct advantage of covering a multitude of sins. It does not show where or how the judge had erred on the side of over generosity or on the side of parsimony. But there is at least one good reason why a global sum should be discouraged.

7. It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in but for the accident. The damages must be fair, adequate and not excessive. A reasoned judgment must therefore be given by the judge, following legal principles and precedents. Other awards in other cases should normally be prayed in aid, but consideration must be given where the circumstances differ.

8. In Murtadza Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216 this court has explained that because no interest can be given on future loss, it is entirely inappropriate to make a global award which must necessary incorporate this future loss into the past loss. Unfortunately the trial judges attention was not drawn to this case. The explanation was evident. He gave judgment before the delivery of the Federal Court judgment.

9. But this explanation does not quite absolve anyone from the duty to draw his attention to the case of Jefford v Gee [1970] 2 QB 130; [1970] 1 All ER 1202; Cookson v Knowles [1979] AC 556; [1978] 2 All ER 604; and Pickett v British Rail Engineering Ltd [1978] 3 WLR 955; [1980] AC 136; [1979] 1 All ER 774 which are the authorities relied on for this Court’s judgment. If his attention had been drawn to these authorities, he would have realised that the trend of the modern authorities is not towards awards of global sums but towards awards under particular heads of claim.

10. In the matter of what are the proper heads of claims in a case of total or near total incapacity his attention should have been drawn to the House of Lords case of Lim Poh Choo v Camden & Islington Area Health Authority [1978] 3 WLR 895; [1979] 3 WLR 44; [1979] 2 All ER 910 which must now be regarded as the leading case on the subject. It is realised that the final words of that case were not said until 21 June 1979 and the judgment did not reach us before the case was heard. But the judgments of Bristow J at first instance and of the Court of Appeal were published on 1 December 1978 in the Weekly Law Reports [1978] 3 WLR 895, months before the case was heard in the High Court.

11. Again, if his attention had been drawn to that case, he would have been able to advise himself that in a case of total or near- total incapacity, the heads of claim for damages are:

    1. pain and suffering and loss of amenities,

    2. out of pocket expenses up to date of trial,

    3. cost of care to date of judgment with interest,

    4. loss of earnings to date of judgment with interest,

    5. cost of future care and

    6. loss of future earnings.

    And he would have then dealt with the action before him on this basis, except possibly in this particular case, loss of actual earnings.

12. In the House of Lords: [1979] 3 WLR 44; [1979] 2 All ER 910, except for some matters which need not concern us here, the judgments of Bristow J and the majority of the Court of Appeal were in the main upheld. Not only did Lord Scarman, with the concurrence of all his brethren, continue to consider the claim under these heads of claim, he also set out deliberately to restate the principles in a particularly attractive and useful way, with special reference to the more serious, often catastrophic cases of severe injuries, often affecting the mental perception of the victim.

13. We can do no better than to turn to the speech of Lord Scarman in our task which clearly lies before us, in this appeal, to assess the proper damages to be awarded to Salbiah under the various heads and then on the aggregate to see whether it differs so much from the trial judge’s own global sum that we in the exercise of our appellate jurisdiction and on well-established principles, ought to interfere.

    A. THE AWARD FOR PAIN AND SUFFERING AND LOSS OF AMENITIES

14. The House of Lords reaffirmed the authority of Wise v Kaye [1962] 1 QB 638; [1962] 1 All ER 257 and of H West & Son Ltd v Shephard [1964] AC 326; [1963] 2 All ER 625 and the two rules formulated are:

    1. The fact of unconsciousness does not eliminate the actuality of the deprivation of the ordinary experience and amenities of life. Lim Poh Choo in effect extends the Pickett principle to the plaintiff who is prevented from feeling his loss, not by death, but by total disablement, and is thus the logical corollary of that case.

    2. If damages are awarded on a correct basis, it is of no concern to the court to consider any question as to the use that will thereafter be made of the money awarded. The House of Lords made it quite clear that damages are first and foremost for replacing what the plaintiff has lost.

15. Lord Scarman considered that the effect of these two cases is twofold:

    First, they draw a clear distinction between damages for pain and suffering and damages for loss of amenities. The former depend on the plaintiff’s personal awareness of pain, her capacity for suffering. But the latter are awarded for the fact of deprivation, a substantial loss whether the plaintiff is aware of it or not. Secondly, they establish that the award in Benham v Gambling [1941] AC 157; [1941] 1 All ER 7 (assessment in fatal cases of damages for loss of expectation of life) is not to be compared with and has no application to, damages to be awarded to a living plaintiff for loss of amenities.

16. On the evidence, Bristow J found that Dr Lim’s loss of amenities of her good and useful life is total. On this finding which Lord Scarman refused to overrule, although he was referred to the medical evidence led which would suggest that Dr Lim’s awareness of her condition was greater and more sustained than the trial judge found, the Law Lord held that the award of £20,000 was not excessive under this head. He would appear to suggest that if the medical finding was otherwise, the award could be higher. Dr Lim was a mature woman, with professional qualifications, on the way to the top of her career as a psychiatric consultant.

17. It may of course be argued that Salbiah had not “lived” in the way that Dr Lim had and therefore would not have lost as much in the way of amenities and ought not therefore to be compensated with a comparable sum. On the other hand, it can also be argued that Salbiah has a longer way to go, and on the way she could and would have ‘lived’ in the way that Dr Lim had if she had not suffered her catastrophic injuries and therefore her loss of amenities must be regarded as greater because of the longer life ahead of her. For ourselves, we do not consider that Salbiah’s immaturity is of any great significance. She certainly has a greater awareness of her physical condition.

18. In all the circumstances of this case, we would award $70,000 for pain and suffering and loss of amenities, which, on the authority of Pickett v British Rail Engineering Ltd, supra, should bear interest at 6% from the date of the service of the writ to the date of trial.

    B. OUT OF POCKET EXPENSES

19. The out of pocket expenses have been charged at $50, travelling expenses for Salbiah and settled at the higher figure of $500.

    C. COST OF CARE TO DATE OF JUDGMENT

20. As for the cost of care to date of judgment, no evidence was led that this care undertaken by Salbiah’s mother was other than the normal care devoted by a mother to an infant or a girl of tender years. Consequently we make no award.

    D. COST OF FUTURE CARE

21. Again, no evidence was led in the High Court of the cost of future care. A submission was however made based on certain figures submitted by counsel.

22. It should perhaps be realised that a submission must be made on the evidence adduced in court or on admissions agreed to by the parties and that a court can only act on such evidence and admissions. Nevertheless it must be a matter of some certainty that there must come a time when Salbiah’s parents will not be able to look after her physical needs and will have to call on outside assistance which will have to be paid for. Even if it is otherwise and Salbiah’s parents can look after her, they will have to be compensated for the time and money spent on such care and such compensation, in our view, must be a charge for future care.

23. If we are not to shirk our duty to apply the principle of law that the compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong, a principle distilled by Lord Scarman from Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, we must do the best we can as we are enjoined by authority to do, in the circumstances of this case and the evidence or rather in the absence of it. But we must also bear in mind the facts of the accelerated payment and the availability of capital as well as income to meet the cost of care and the contingency that Salbiah may not live out her full expectation of life. She is now aged 12. In all the circumstances of the case we therefore take a multiplier of 25 years’ purchase on a multiplicand of $150 and reach a figure of $25,362 for cost of future care.

    E. LOSS OF FUTURE EARNINGS

24. Despite the tender age of Salbiah, we have not the slightest doubt that if she had not been injured and rendered totally incapable of gainful employment, she would have, at the appropriate age, earned an income for herself. This she has now lost by reason of the tort committed on her by the respondent and for this in our view she must receive compensation.

25. The basis for such an award is that she should recover for her future loss “a capital sum which, after all proper deductions, will represent her loss of earnings, net after allowing for working expenses, and her cost of care, net after deducting the domestic element. A capital sum so assessed will compensate for a genuine loss and for a genuine item of additional expenditure, both of which arise from the injury she has sustained. It will not contain any element of duplication or go beyond compensation into surplus.”

26. Unfortunately we do not have any evidence of Salbiah’s social and economic background or her prospects. We have again to do the best we can and doing just that, we take what we believe to be a reasonably moderate figure of $200 for her net monthly income and having regard to a span of a working life of, say, 25 years, having regard to her age and to the discounts earlier referred to as necessarily to be taken, we arrive at a figure of $33,816.

27. On the authority of Cookson v Knowles, supra, and of the latter case of Thompson v Faraonio [1979] 1 WLR 1157 on appeal from the Full Court of the Supreme Court of South Australia, in which the Privy Council held that on principle there should be no interest on an award for future loss of earning capacity, this sum shall not bear interest, nor will the sum awarded for cost of future care.

    THE TOTAL OF GENERAL DAMAGES

28. In the result, the total now comes to $129,178. Lord Scarman has made it clear that the amount of the total is quite immaterial and that if the tortfeasors are to succeed, they must show that one or more of the component items of the award are wrong. But for the purpose of this appeal, having regard to the global award made and the absence of any indication of the amount of each proper head of claim, the total serves as an indication whether the award made was so excessive or so inadequate that an appellate court ought to intervene. Clearly the global sum awarded is so inadequate that we must have no hesitation to substitute our assessment for that of the trial judge.

29. It is obvious and we state this as a fact that the High Court had been labouring under a misdirection and the Federal Court met with considerable difficulties because no sufficient consideration had been given to the proper claims for damages in a case such as this and the proper assistance which a trial court must have a right to expect, was not given. But this we must also say. When the only issue is the question of general damages, there can be absolutely no justification for the inclusion in the Record of Appeal of those pages — pages 35–36, and 42 relating to special expenses and pages 39-41 relating to negligence: see Ooi Soon Eng v Ng Kee Lin [1980] 1 MLJ 26; Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41 and the judgment in Syarikat Jengka Sdn Bhd v Abdul Rashid Harun [1981] 1 MLJ 201 .

30. The appeal is allowed, the award of $129,178 will be substituted for the $75,000 award of the High Court. The appellant shall have the costs of the appeal except for the costs of the unnecessary pages in the record referred to in the preceding paragraph.[a]

31. The award is to be paid to the Public Trustee to be held in trust for Salbiah.

Cases

Murtadza Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216; Jefford v Gee [1970] 2 QB 130; [1970] 1 All ER 1202; Cookson v Knowles [1979] AC 556; [1978] 2 All ER 604; Pickett v British Rail Engineering Ltd [1978] 3 WLR 955; [1980] AC 136; [1970] 1 All ER 774; Lim Poh Choo v Camden & Islington Area Health Authority [1978] 3 WLR 895; [1979] 3 WLR 44; [1979] 2 All ER 910; Wise v Kaye [1962] 1 QB 638; [1962] 1 All ER 257; H West & Son Ltd v Shephard [1964] AC 326; [1963] 2 All ER 625; Benham v Gambling [1941] AC 157; [1941] 1 All ER 7; Livingstone v Rawyards Coal Co (1880) 5 App Cas 25; Thompson v Faraonio [1979] 1 WLR 1157; Ooi Soon Eng v Ng Kee Lin [1980] 1 MLJ 26; Chow Yee Wah v Choo Ah Pat [1978] 2 MLJ 41; Syarikat Jengka Sdn Bhd v Abdul Rashid Harun [1981] 1 MLJ 201.

Representations

RK Nathan for the appellant.

G Sri Ram for the respondent.

Notes:-

[a] Jamil Harun appealed. The Privy Council (Lord Keith of Kinkel, Lord Edmund-Davies, Lord Scarman, Lord Roskill & Lord Templeman) on 13 February 1984 dismissed his appeal. See Jamil Harun v Yang Salbiah @www.ipsofactoJ.com/archive/index.htm [1984] Part 6 Case 6 [PC].

This decision is also reported at [1981] 1 MLJ 292