B.K. Lee

- vs -

S. Ng

Judgment

K.F. Wong JC

1. On 7 October 1979 the plaintiff, Lee Boon Kiat, was riding motorcycle No NH 1442 along the Linggi-Rantau Road, Negeri Sembilan, from the direction of Linggi towards Rantau when at or near 14¼ miles 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. As a result of this accident the plaintiff sustained serious injuries.

2. Last year he filed the present suit against the defendant for negligence in driving the motor car, claiming damages, interest and costs.

3. As is usual in a "80%" down case, the defendant denied negligence and pleaded that the accident was caused solely or substantially contributed to by the negligence of the plaintiff. However, the defendant, who called no evidence, admitted full liability at the commencement of the trial. The parties agreed that special damages for items (a) to (i) in the particulars of special damages be fixed at $8,716.

4. By consent of the parties, I have to decide on the awards for the following heads:

   1. Loss of actual past earnings;

   2. Loss of partial past earnings,

   3. Cost of artificial limbs and their maintenance;

   4. Pain and suffering and loss of amenities; and

   5. Loss of future earnings.

   A. LOSS OF ACTUAL PAST EARNINGS

5. The average income of the plaintiff at the time of the accident while he was employed by Vanguard Engineering Industries Sdn Bhd, based on his last drawn salary, allowance and overtime payment for four months (i.e. July to October 1979), was $357 per month. This is evidenced by the letter dated 20 November 1979 appearing on page 10 of the agreed bundle of documents. I therefore award 15 months at $357 per month for loss of actual past earnings for the period 1979 October to January 1981, totalling $5,355, which is marginally higher than the figure of $5,250 suggested by learned counsel for the defendant.

   B. LOSS OF PARTIAL PAST EARNINGS

6. For loss of partial past earnings for 11 months from February to judgment in December 1981, I award a sum of $178.50 (i.e. at half monthly income) per month making a total of $1,963.50.

   C. COST OF ARTIFICIAL LIMBS AND THEIR MAINTENANCE

7. At the time of the accident the plaintiff (born on 29 June 1959) was slightly over 20 years old and by the time he was first fitted with an artificial limb in July 1980, he was about 21 years old. There is undisputed evidence that each artificial limb has a life span of five years and costs $1,700 and its maintenance will cost $300 per year. Therefore the cost of one artificial limb and its maintenance over a period of five years will be $3,200. Assuming that the plaintiff would live up to the age of 55 to 60 years, he would require seven artificial limbs costing a total of $22,400 at current cost factors.

8. The award of $16,000 suggested by plaintiff’s counsel is too high while that of $6,500 suggested by defendant’s counsel is far too low. Allowing for contingencies of life and the fact that the plaintiff is receiving a lump sum now, I think it fair to assess for the purpose of my award the cost of the seven artificial limbs and their maintenance at a global sum of $11,200, which, together with the interest earned from its fixed deposit account, will be adequate to cover the total cost over the years.

9. From the evidence it is unusual for the user of an artificial limb to have one spare set of artificial limb while he has one in actual use. Therefore the claim for a spare set is not allowed.

   D. PAIN & SUFFERING & LOSS OF AMENITIES

10. The awards are considered separately under items (a) to (d) below.

11. From the medical report dated 9 September 1980 of Dr Mohd Nasir Abu Samah of the General Hospital, Seremban, and the specialist reports of Dr Mahmood Merican dated 8 December 1979 and 18 November 1980 the plaintiffs injuries, for the purpose of his claim, may be listed as follows:

    1. Fracture of lower 1/3 of left femur.

    2. Laparotomy and surgical control of bleeding from the stomach wall.

    3. 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.

    4. 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.

12. Items (a) and (b) above presented no difficulty as the quantifications of both counsel were the same. I therefore award $4,500 for fracture of the left femur and $4,000 for laparotomy.

13. As for item (c) above it was suggested by counsel for the defendant that the award should be $35,000. Counsel cited the case of Mahmod Kailan v Goh Seng Choon [1976] 2 MLJ 239, in support of his contention. It must be noted that that case was decided in 1976 when the social and economic conditions were different. In more recent years, as in the case of Lee Yew Hoe v Lee Bock Huat [1980] 2 MLJ 271 and the case of Chia Poo King v Tan Eng Chin [1981] CLJ 130, the awards for similar injuries have tended to increase, partly owing to inflation. I would therefore fully accept the suggestion of learned counsel for the plaintiff and award the sum of $40,000 for the injuries. It may be noted that by way of comparison Roberts CJ in the Brunei case of RJ McGuinness v Ahmad Zaini [1980] 2 MLJ 304, awarded a sum of B$50,000 for pain and suffering and loss of amenities for an above-knee amputation.

14. It will be helpful to refer to some past decisions in considering the award for item (d) above. In 1962 in Abdul Samad v Gammon & Christiani-Nielsen [1962] MLJ 394, Gill J (as he then was) awarded $12,500 for the plaintiff, a 32 year old ex-tailor employed by the defendants as a winch driver. He suffered multiple lacerations of right hand and wrist involving wrist joint, 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 and two of the small bones of the wrist had been detached. As a result of these injuries the plaintiff had a claw hand.

15. Then in 1964 in Phua Tin Hang v Teo Soh Choo [1964] MLJ cx , the plaintiff was 19 years at the time of accident, when he was earning $130 a month as a food caterer assistant. He sustained lacerated wound 2½" deep which cut all the flexor tendons and nerves of the left forearm, complete ulnar and medial nerve paralysis leaving a claw hand, and lacerated wound in the mucous membrane of the mouth with mandible exposed. The effect of the injury was that he was virtually without the use of the left hand. The Singapore High Court awarded $12,500 for loss of amenities, pain and suffering.

16. In the present case before me, the seriousness of injuries of the plaintiff is comparable to that of the injuries of the plaintiffs in the above two reported cases, the common factor in all these three cases being the loss of the use of one hand. Bearing in mind that the awards in the first two cases were made over seventeen years ago and the effects of inflation over these years, the sum of $12,500 is by current standard on the low side. Counsel for the defendant submitted that a figure of $15,000 would be fair while counsel for the plaintiff urged me to award $25,000. Taking all these factors into consideration, I am of the view that an award of $22,500 is fair and reasonable.

    E. LOSS OF FUTURE EARNINGS

17. I now come to the question of the assessment of loss of future earnings. It is invariably a difficult and somewhat speculative exercise for the trial judge as he has to take into account the imponderables of life in the future based on certain known and presumed facts at present. Admittedly, from the very nature of the exercise, it is one which admits of no mathematical precision.

18. The plaintiff was examined by Dr Mahmood Merican, Consultant Orthopaedic Surgeon, whose opinion is as follows:

    This man suffered from severe injuries, and earlier during his treatment, his life was in danger, at first from the injuries themselves, then from the gangrene and infection from the right leg and then from the bleeding from the stomach. He has severe disabilities as described above especially the paralysis of the right upper limb and amputation of the right leg. The paralysis has improved slightly over the last few months and active flexion at the right elbow has been improved by the operation. The present disabilities are likely to be permanent. He is permanently incapacitated from work except of a sedentary nature and even in this respect he is limited by the partial paralysis of the right upper limb. He is now unable to write with the right hand or to carry out activities with the right hand which requires strength or accuracy of movements.

19. Counsel for the plaintiff submitted that since the plaintiff had lost the right leg and at the same time the use of the right arm, future loss of earnings should be based on 75% (i.e. $330) of his present earning capacity of what counsel estimated to be $450 per month. Over 25 years’ purchase, the award should be $55,800. On the other hand, counsel for the defendant submitted that in the circumstances of the case, 50% (i.e. $180) of what the plaintiff was earning should be used over 22 years’ purchase, thus yielding a rounded sum of $28,500.

20. In calculating the loss of future earnings, all relevant circumstances should be taken into account, including the age of the plaintiff, his occupation and income, the consequences of his injuries, and whether or not he has taken any reasonable steps to mitigate his loss.

21. The evidence of Mr Lai Choo Peng, the managing director of Vanguard Industries Sdn Bhd, the plaintiff’s employers, shows that in 1981 the plaintiffs salary would be $350 and with the increments and overtime allowance the total monthly income of the plaintiff would in 1981 be in the region of $400, a figure which appears fair and reasonable to me. Mr Lai stated that if he were to employ a new storekeeper, his salary would be $400 per month. I have no reason to doubt that the plaintiffs work was satisfactory to his employers.

22. The evidence also shows that the plaintiff did not mitigate his loss. In cross-examination the plaintiff was honest enough to say that after his discharge from Pantai Medical Centre, he did not go back to his former employers. Neither did he make any effort to seek employment in Kuala Lumpur or his home town of Pengkalan Kempas. He also stated that he could not write with his right hand and I accept that in his post-accident condition he could not do the work of a store-keeper or any work of a similar nature satisfactorily. However, there is specialist evidence that he could do some sedentary work.

23. Taking all these factors into consideration, including the fact that the plaintiff has not mitigated his loss (see Yoong Leok Kee Corp Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21, 22) and that the plaintiff will be getting a lump sum now for the whole of his working life Murtadza Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216, I am of the view that, based on a sum of $240 (i.e. after discounting 40% of $400) per month over 23 years’ purchase (on the basis that the plaintiff’s useful working life would end at 55 years), the proper award for loss of future earnings should be $38,847.09, rounded to $40,000.

    OVERLAPPING

24. In giving these awards, as the injuries relate to different parts and functions of the body, I am satisfied that there is no question of overlapping or duplication. Consequently, no deductions should be made.

    THE TOTAL AWARDS

25. The total awards are as follows:

    A.	Loss of actual past earnings ...	$ 5,355.00
    B.	Loss of partial past earnings ...	1,963.50
    C.	Cost of artificial limbs and maintenance ...	11,200.00
    D.	Pain and suffering and loss of amenities ...	71,000.00
    E.	Loss of future earnings ...	40,000.00
    F.	Agreed special damages ...	8,716.00
    	Total	$138,234.50

26. There will be judgment for the plaintiff in the sum of $138,234.50 with costs to be taxed.

    The awards on items A, B and F are with interest at 4% per annum from date of accident (i.e. 7 October 1979) to judgment. Interest should also run on item D from date of service of writ to judgment at 6% per annum. No interest is allowed on items C and E.

27. The awards on items A, B and F are with interest at 4% per annum from date of accident (i.e. 7 October 1979) to judgment. Interest should also run on item D from date of service of writ to judgment at 6% per annum. No interest is allowed on items C and E.

Cases

Mahmod Kailan v Goh Seng Choon [1976] 2 MLJ 239; Lee Yew Hoe v Lee Bock Huat [1980] 2 MLJ 271; Chia Poo King v Tan Eng Chin [1981] CLJ 130; RJ McGuinness v Ahmad Zaini [1980] 2 MLJ 304; Abdul Samad v Gammon & Christiani-Nielsen [1962] MLJ 394; Phua Tin Hang v Teo Soh Choo [1964] MLJ cx; Yoong Leok Kee Corp Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21; Murtadza Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216

Representations

Chan Shick Chin for the plaintiff.

VP Nathan for the defendant.