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JUDGMENT
Abdul Malik Ishak JCA
The Parties
[1]
I shall refer the parties to what they were referred to before the
Sessions Court at Ipoh, Perak. Thus, Sukatno will be referred to as the
plaintiff. While Lee Seng Kee will be referred to as the defendant and,
finally, Ong Thean Soo will be referred to as the third party.
At The Sessions Court
[2]
In the statement of claim, the plaintiff alleged that the plaintiff had
suffered personal injuries and loss arising out of a road accident
which occurred on 30 June 1996 at about 3.10pm along Jalan Fair Park,
Ipoh, Perak involving a motor van WR 5906 allegedly driven negligently
by the defendant and while so driven collided into the plaintiff who was
walking on the same side of the road.
[3] The Sessions
Court on 28 November 2001 found the defendant 50% liable to the
plaintiff in the tort of negligence and also found the plaintiff 50%
liable for contributory negligence. However, the Sessions Court
dismissed the defendant's claim against the third party with costs.
[4]
On the basis of 100% liability, the Sessions Court awarded the
plaintiff the sum of RM150,000 as general damages bearing in mind that
the plaintiff was paralysed from the waist downwards as a result of the
road accident. That would be for pain and suffering and the award
carried with it interest at the rate of 8% per annum from the date of
service of the summons on 21 October 1996 till the date of judgment on
28 November 2001.
[5] For special damages, the Sessions
Court awarded RM14,000 for transport expenses with an interest of 4% per
annum from the date of the accident on 30 June 1996 until the date of
judgment on 28 November 2001.
[6] Still under the category of special damages, the Sessions Court awarded the following awards:
(i)
a sum of RM580 as cost of relevant documents with interest at 4% per
annum from the date of the accident on 30 June 1996 until the date of
judgment on 28 November 2001;
(ii) a sum of RM310 being cost of
medical treatment with 4% interest per annum from the date of the
accident on 30 June 1996 until the date of judgment on 28 November 2001;
(iii)
a sum of RM21,600 towards the cost of pampers with interest at 4% per
annum from the date of the accident on 30 June 1996 until the date of
judgment on 28 November 2001;
(iv) a sum of RM153,600 for loss of future earnings calculated at RM800 per month for 16 years;
(v) a sum of RM60,000 for nursing care; and
(vi) costs of the action at RM18,036.
At The High Court
[7] The defendant appealed to the High Court against the whole of the decision of the Sessions Court.
[8]
In regard to the loss of future earnings in the sum of RM153,600 that
was awarded to the plaintiff by the Sessions Court, the defendant
appealed to set it aside on the grounds that it was gained through
illegal earnings confounded by the fact that the plaintiff was an
illegal immigrant.
[9] Before the High Court, the appeal by the defendant was focussed on liability and the loss of future earnings.
[10]
After hearing arguments, the High Court allowed the defendant's appeal
against liability and set aside the finding of 50% liability against the
defendant and the 50% contributory negligence against the plaintiff.
The High Court also held that the plaintiff's claim against the
defendant should be dismissed with costs. In regard to the award for
loss of future earnings at RM153,600, the High Court set it aside.
However, the dismissal of the defendant's claim against the third party
was affirmed by the High Court with no costs awarded to the third party.
[11] In short, the High Court allowed the defendant's appeal with costs.
The Appeal
[12]
Aggrieved by the decision of the High Court, the plaintiff filed an
appeal against the whole decision of the High Court to this court.
Analysis
(a) Liability
[13]
In his police report at p. 26 of the additional appeal record ("AAR"),
the plaintiff said that on 30 June 1996 at about 2.50pm while he was
walking along Jalan Fair Park near to the Magnum shop on the left side
of the road, a motor van WR 5906 suddenly collided into him and he lost
consciousness. The plaintiff also said in his police report that he was
warded at the Ipoh General Hospital and that he sustained injuries to
his back.
[14] The plaintiff lodged his police report on 10
July 1996 at about 11.40pm some ten (10) days after the defendant
lodged his police report on 30 June 1996 at about 4.35pm as reflected at
p. 30 of "AAR".
[15] It was quite natural for the
plaintiff to lodge his police report some ten (10) days later because he
was rendered unconscious after the collision and landed himself at the
Ipoh General Hospital.
[16] In his statement of claim at
pp. 237 to 239 of the appeal record bundle 3 ("ARB3"), the plaintiff
averred that on 30 June 1996 at about 3.10pm when he was walking along
Jalan Fair Park he was collided into by motor van WR 5906 driven by the
defendant which was travelling from Ipoh town in the direction of
Kampung Simee.
[17] The plaintiff averred in his statement
of claim that the accident occurred due to the negligence of the
defendant or alternatively due to the contributory negligence of the
defendant.
[18] The particulars of negligence of the defendant advanced by the plaintiff in his statement of claim were, inter alia :
(i) driving too fast;
(ii) driving too close to the edge of the road;
(iii) driving in the wrong direction;
(iv) failed to provide any reasonable warning as to his arrival;
(v)
failed to apply the brakes within reasonable time or not at all or
failed to drive slowly or control the motor van WR 5906 in order to
avoid colliding into the plaintiff;
(vi) failed to observe the plaintiff within reasonable time in order to avoid the road accident;
(vii) entered into the plaintiff's path;
(viii) failed to wait until the plaintiff had safely walked away; and
(viv) failed to observe the provisions of the Highway Code.
[19] In his statement of claim, the plaintiff also relied on the doctrine of res ipsa loquitur.
[20]
In his statement of defence, the defendant denied the averments made by
the plaintiff in the plaintiff's statement of claim in regard to the
particulars of negligence of the defendant and put the plaintiff to
strict proof thereof.
[21] The defendant, in his statement
of defence, denied each and every allegation of negligence itemised by
the plaintiff in the plaintiff's particulars of negligence of the
defendant and put the plaintiff to strict proof thereof.
[22]
The defendant, in his statement of defence, put the whole blame for the
road accident onto the plaintiff or alternatively alleged contributory
negligence on the part of the plaintiff.
[23] The particulars of negligence of the plaintiff itemised by the defendant in his statement of defence included, inter alia :
(i) failed to observe the presence of the motor van WR 5906;
(ii) walking hurriedly;
(iii) failed to give any warning as to his presence;
(iv) failed to consider the presence of other road users;
(v) failed to give adequate and ample leeway to motor van WR 5906;
(vi) failed to take care of himself when he was on the road; and
(vii) created a dangerous situation which posed difficulty to the defendant to avoid the accident.
[24] In his statement of defence, the defendant denied that the doctrine of res ipsa loquitur applied in this case.
[25]
Now, the particulars of negligence of the plaintiff as advanced by the
defendant in his statement of defence as set out at paras "n" to "r" of p
245 of "ARB3" were not supportive of the defendant's case against the
plaintiff. Paragraph "n" of the particulars of negligence of the
plaintiff averred that the plaintiff was driving a vehicle and that the
plaintiff overtook vehicles ahead of him and encroached into the
defendant's side of the road. This cannot be right because the plaintiff
was a pedestrian and was not driving a vehicle.
[26] The
suggestion that the plaintiff was crossing the road at the material time
fell flat to the ground if we were to take a look at the statement of
claim of the defendant against the third party as seen at pp. 247 to 249
of "ARB3". The defendant's statement of claim against the third party
supported the plaintiff's version that the plaintiff was walking by the
side of the road when he was collided into by motor van WR 5906.
[27]
In the defendant's statement of claim against the third party, the
defendant did not aver that the plaintiff was crossing the road. It is
correct to say that the case of the plaintiff that the plaintiff was
walking by the side of the road was confirmed by the defendant in his
statement of defence to the plaintiff's claim as well in the defendant's
statement of claim against the third party.
[28] The third
party filed a defence to the defendant's statement of claim and the
third party's defence can be seen at pp. 250 to 253 of "ARB3". In
itemising the particulars of negligence of the defendant, the third
party did not allege that the plaintiff was crossing the road.
[29]
Even the defendant's police report at p. 30 of "AAR" did not say that
the plaintiff was crossing the road. The defendant did not say in his
police report that a third party vehicle collided into the plaintiff who
was crossing the road. All the defendant said was this, "apabila sampai
depan Magnum tiba-tiba sebuah motokar no: ACN 3772 yang datang dari
arah stadium telah terlanggar pejalan kaki."
[30] And when
the defendant suggested that the third party had collided into the
plaintiff and that caused the plaintiff to be flung to the defendant's
side of the road, the defendant did not say that the plaintiff was
crossing the road. If the High Court judge had not misread all the
pleadings of the parties, he would have noted that the defendant did not
allege that the plaintiff crossed the road.
[31] Now, the
first time that the defendant alleged that the plaintiff was collided
into while crossing the road by a third party was when the defendant
gave his evidence before the Sessions Court. This was definitely a clear
and wilful departure from his pleaded case.
[32] The
learned counsel for the defendant has put the defendant's version to the
plaintiff in this way. That a motorcar no: ACN 3772 driven by the third
party had collided into the plaintiff who was stationary at the centre
of the road. But when the defendant gave evidence, he said something
else. The defendant said that the plaintiff was collided into by
motorcar no: ACN 3772 driven by the third party when the plaintiff was
crossing the road. At this juncture, one may pose these two pertinent
questions:
(i) was the plaintiff stationary?; and
(ii) was the plaintiff crossing the road?
[33]
With respect, the High Court failed to appreciate that the defendant
did not even know what his case was all about. Pure and simple, it was a
case of the learned counsel for the defendant putting one version and
the defendant giving another version. The crux of the case was this: was
the plaintiff crossing the road when he was collided into?, or was the
plaintiff stationary at the centre white line?, or was the plaintiff
walking along the right side of the road and that would be at Jalan
Kamaruddin Isa facing the hospital as shown in the sketch plan at p. 31
of "AAR"?
[34] Looking at the pleadings in its correct
perspective, one can safely say that the defendant has acknowledged that
the plaintiff was walking along the side of the road. The defendant
cannot now conveniently depart from his pleadings and attempt to make
out a case different from what has been pleaded.
[35] The
law books are replete with authorities on pleadings. They all say that
pleadings are (i) concise statements of fact; (ii) and that only
material facts and not law or evidence has to be pleaded (Knowles v. Roberts
[1888] 38 Ch D 263, CA). The pleadings must be drafted in chronological
order. It must be brief and succinct. It must not contain any verbiage.
Only those facts which are necessary for the purpose of formulating a
complete cause of action or defence need be set out (Bruce v. Odhams Press, Limited [1936] 1 KB 697, CA).
[36] According to Bret LJ in Philipps v. Philipps And Others
[1878-79] 4 QBD 127, at 133, CA, "If parties were held strictly to
their pleadings under the present system they ought not to be allowed to
prove at the trial, as a fact on which they would have to rely in order
to support their case, any fact which is not stated in the pleadings."
It simply means that each party must plead all the material facts on
which he proposes to rely at the trial; otherwise that party is not
entitled to give any evidence of those material facts.
[37] According to the case of Waghorn v. George Wimpey & Co. Ltd.
[1969] 1 WLR 1764 where the evidence adduced at the trial establishes
facts which are different from those pleaded by the plaintiff as
constituting negligence - in fact a radical departure, the action will
be dismissed forthwith. Even if the plaintiff were to succeed at the
trial based on findings of fact by the trial court, that judgment will
not be allowed to stand and the appellate court will dismiss the action (Rawding v. London Brick Co. Ltd. [1971] 10 KIR 207, CA) or at the most will order a new trial (Lloyde v. West Midlands Gas Board [1971] 1 WLR 749, CA, [1971] 2 All ER 1240, CA).
[38]
In an action for personal injuries against the defendant, the defendant
must plead the defence before he is allowed to rely on it (Davie v. New Merton Board Mills Ltd. [1956] 1 WLR 233, [1956] 1 All ER 379).
[39]
And it is not necessary for the defendant to defend himself against
charges which are not yet made or to plead to causes of action which do
not appear in the statement of claim (Rassam v. Budge [1893] 1 QB 571).
[40]
Reverting back to the appeal at hand, the High Court saw it fit to
absolve the defendant from all blame. According to the defendant, he saw
the plaintiff crossing the road from his right to the left and at that
time when the defendant saw the plaintiff, the plaintiff was at point
"O" marked in the sketch plan at p. 31 of "AAR" and at that time the
defendant was about 20 feet to 30 feet away from the plaintiff. Thus,
the defendant was fully aware that the third party vehicle was coming
from the opposite direction and if the defendant's version was true,
this meant that a dangerous situation was building up ahead of him and
yet he admitted that he still proceeded on. It can be surmised that the
defendant ignored the dangerous situation that was building up ahead of
him. I say that in such a situation, the defendant was duty bound to be
cautious and must stop forthwith and not proceed further. Rule 25 of the
Highway Code stipulates that a driver must stop, if by doing so he can
avoid an accident or even the risk of an accident.
[41] In M.A. Clyde v. Wong Ah Mei & Anor. [1970] 1 LNS 73,
the Federal Court held that a breach of r. 28 of the Highway Code can
be used to invoke s. 59(4) of the Road Traffic Ordinance 1958 thereby
raising a prima facie case of negligence.
[42] Abdoolcader J in Yahaya bin Mat & Anor. v. Abdul Rahman bin Abu [1982] CLJ 68; [1982] CLJ (Rep) 363
speaking for the Federal Court aptly said that he regretted that the
trial judge did not use the breach of the provisions of rr. 56, 59 and
60 of the Highway Code for the purpose of establishing liability under
the provisions of s. 59(4) of the Road Traffic Ordinance 1958.
[43]
In my judgment, the High Court judge failed to consider the provisions
of the Highway Code and had he done so he would not have interfered with
the decision of the Sessions Court.
[44] It is now opportune for me to refer to the case of Nance v. British Columbia Electric Railway Company LD.
[1951] AC 601, a decision of the Privy Council with a coram of Viscount
Simon, Lord Porter, Lord Morton of Henryton, Lord Reid and Lord Asquith
of Bishopstone. That was a case where the trial was before a special
jury of an action for damages brought by the appellant against the
respondent company in respect of the death of her husband, who was run
into by a street-car and killed instantly, the trial judge directed the
jury that before they could find that the deceased had been guilty of
contributory negligence, as was alleged, they must find that he owed a
duty to the respondent, and that he committed a breach of that duty and
was therefore negligent. The jury negatived contributory negligence and
found the respondent company solely to blame. The Privy Council held
that the misdirection to the jury could not be regarded as vitiating the
conclusion of the jury and that their verdict that the respondent was
alone to blame should stand. Viscount Simon writing for the Privy
Council aptly said at p. 611 of the report:
With this
conflict of judicial opinion before them their Lordships must now deal
with the objection to the summing-up and consider whether the conclusion
reached by the jury was affected by any mistake in it. The statement
that, when negligence is alleged as the basis of an actionable wrong, a
necessary ingredient in the conception is the existence of a duty owed
by the defendant to the plaintiff to take due care, is of course,
indubitably correct. But when contributory negligence is set up as a
defence, its existence does not depend on any duty owed by the injured
party to the party sued, and all that is necessary to establish such a
defence is to prove to the satisfaction of the jury that the injured
party did not in his own interest take reasonable care of himself and
contributed, by this want of care, to his own injury. For when
contributory negligence is set up as a shield against the obligation to
satisfy the whole of the plaintiff's claim, the principle involved is
that, where a man is part author of his own injury, he cannot call on
the other party to compensate him in full. This view of the matter has
recently been expounded, after full analysis of the legal concepts
involved and careful examination of the authorities, by the English
Court of Appeal in Davies v. Swan Motor Co. (Swansea) Ld. [1949] 2 KB 291, to which the Chief Justice referred.
[45] Continuing at the same page and spilling over to p. 612 of the report, Viscount Simon had this to say:
This,
however, is not to say that in all cases the plaintiff who is guilty of
contributory negligence owes to the defendant no duty to act carefully.
Indeed, it would appear to their Lordships that in running-down
accidents like the present such a duty exists. The proposition can be
put even more broadly. Generally speaking, when two parties are so
moving in relation to one another as to involve risk of collision, each
owes to the other a duty to move with due care, and this is true whether
they are both in control of vehicles, or both proceeding on foot, or
whether one is on foot and the other controlling a moving vehicle. If it
were not so, the individual on foot could never be sued by the owner of
the vehicle for damage caused by his want of care in crossing the road,
for he would owe to the plaintiff no duty to take care. Yet such
instances may easily occur, eg, if the individual's rashness causes the
vehicle to pull up so suddenly as to damage its mechanism, or as to
result in following traffic running into it from behind or, indeed, in
physical damage to the vehicle itself by contact with the individual.
When a man steps from the kerb into the roadway, he owes a duty to
traffic which is approaching him with risk of collision to exercise due
care, and if a sentence of Denning, LJ's judgment in the Davies
case [1949] 2 KB 291, 324, where he says, 'when a man steps into the
road he owes a duty to himself to take care for his own safety, but he
does not owe any duty to a motorist who is going at an excessive speed
to avoid being run down', is to be interpreted in a contrary sense,
their Lordships cannot agree with it.
[46] Next, it would be the case of Caswell v. Powell Duffryn Associated Collieries, Limited
[1940] AC 152, a decision of the House of Lords. This was an action for
damages instituted by the mother on behalf of her son, a mine worker,
who met his death while at work in a colliery belonging to the
respondents. Her case was that her son's death was due to the
respondents' breach of their duty, under s. 55 of the Coal Mines Act
1911 to keep securely fenced the exposed and dangerous machinery in the
mine which the deceased was employed to tend. Writing a separate
judgment, Lord Porter had this to say of the words "contributory
negligence" as seen at pp. 185 to 186 of the report:
Strictly
speaking the phrase 'contributory negligence' is not a very happy
method of expressing an act of the employee which may relieve the
employer from liability. Probably the phrase 'negligence materially
contributing to the injury' would be more accurate, but if the word
'contributory' be regarded as expressing something which is a direct
cause of the accident, either phrase is accurate enough and the less
accurate phrase is, I think, sanctioned by long usage.
[47]
If you are careless and by virtue of your carelessness you cause damage
to others, you may be held liable to pay compensation. It is correct to
say that the tort of negligence requires some form of careless conduct.
But not all careless conduct which causes damage will give rise to an
action in tort. According to Lord Wright in Lochgelly Iron And Coal Company, Limited v. M'Mullan
[1934] AC 1 at 25, that the tort of negligence consists of a legal duty
to take care and there is a breach of that duty by the defendant
causing damage to the claimant.
[48] Put differently, the
tort of negligence involves a duty of care, a breach of that duty and
damage caused to the claimant by that breach. A motorist may drive his
car as carelessly as he pleases and he will not be liable in tort unless
he damages another. However, it is indisputable that all motorists
"owe" a duty of care to other road users. The same duty of care would
also apply to the defendant here when he drove that motor van WR 5906
along Jalan Kamaruddin Isa in the direction of Jalan Ghazali Jawi as
depicted in the sketch plan at p. 31 of "AAR". The defendant "owe" that
duty of care to the plaintiff so as not to collide into the plaintiff
who was then walking on the right side of the same road facing the
hospital. Lord MacMillan observed in M'Alister (Or Donoghue) (Pauper) v. Stevenson [1932] AC 562, HL, 619 that:
The
grounds of action may be as various and manifold as human errancy; and
the conception of legal responsibility may develop in adaptation to
altering social conditions and standards. The criterion of judgment must
adjust and adapt itself to the changing circumstances of life. The
categories of negligence are never closed.
[49] Even though the facts in M'Alister (Or Donoghue) (Pauper) v. Stevenson (supra)
concerned the manufacturer-consumer relationship and, factually
speaking, are poles apart from the facts of the present appeal, yet the
principles of law laid down in that case are of universal application.
That case is regarded as a landmark in the tort of negligence.
[50] Negligence is the failure to exercise care which the circumstances demand (Glasgow Corporation v. Muir And Others [1943] AC 448 at 457, HL (Sc.), [1943] 2 All ER 44 at 48 HL; and Carmarthenshire County Council v. Lewis
[1955] AC 549, HL (E) [1955] 1 All ER 565, HL) and what amounts to
negligence would depend on the facts of each particular case. Lord
Dunedin aptly said in Fardon v. Harcourt-Rivington [1932] All ER Rep 81 at 83, HL:
The
root of this liability is negligence, and what is negligence depends on
the facts with which you have to deal. If the possibility of the danger
emerging is reasonably apparent, then to take no precautions is
negligence; but if the possibility of danger emerging is only a mere
possibility which would never occur to the mind of a reasonable man,
then there is no negligence in not having taken extraordinary
precautions.
[51] And where there is no duty to exercise care, negligence will have no legal consequence (Le Lievre And Dennes v. Gould. [1893] 1 QB 491 at 497, CA; Bottomley And Another v. Bannister And Another [1932] 1 KB 458 at 476, CA; and Grant v. Australian Knitting Mills Limited, And Others
[1936] AC 85 at 103, PC). But where there is a duty to exercise care,
reasonable care must be taken to avoid acts or omissions which can
reasonably be foreseen to cause physical injury to persons or property.
In the words of Lord Macmillan in Glasgow Corporation v. Muir And Others (supra) :
The
standard of foresight of the reasonable man is, in one sense, an
impersonal test. It eliminates the personal equation and is independent
of the idiosyncrasies of the particular person whose conduct is in
question. Some persons are by nature unduly timorous and imagine every
path beset with lions. Others, of more robust temperament, fail to
foresee or nonchalantly disregard even the most obvious dangers. The
reasonable man is presumed to be free both from over-apprehension and
from over-confidence, but there is a sense in which the standard of care
of the reasonable man involves in its application a subjective element.
[52] And Lord Reid said in AC Billings & Sons Ltd. v. Riden [1958] AC 240 at 255, [1957] 3 All ER 1 at 8, HL that:
A 'reasonable man' does not mean a paragon of circumspection.
[53]
On contributory negligence, I have this to say. For the defendant to
establish contributory negligence on the part of the plaintiff, the
defendant has to prove that the plaintiff's negligence was the cause of
the harm. According to Viscount Simon in Boy Andrew (Owners) v. St. Rognvald (Owners)
[1948] AC 140 at 149, HL (Sc.), [1947] 2 All ER 350 at 351, 354, HL,
the question to ask would not be related as to who had the last
opportunity of avoiding the mischief but rather whose act was
instrumental in causing the harm. Sometimes a person may be found guilty
of contributory negligence by his own act or omission just like, for
instance, the failure of the motor cylist to wear crash helmet (O'Connell v. Jackson [1972] 1 QB 270, CA, [1971] 3 All ER 129, CA) or the failure to use the safety belt (Froom And Others v. Butcher [1976] 1 QB 286, CA, [1975] 3 All ER 520, CA).
[54]
What is required of the defendant in order to establish a plea of
contributory negligence is rather easy. It is for the defendant to prove
that the plaintiff did not in his own interest take reasonable care of
himself and thus contributed by his own want of care to his own injury (Nance v. British Columbia Electric Railway Company LD. (supra) ).
[55]
The plaintiff as a pedestrian has the right to be on the highway and he
is entitled to expect that the defendant as the driver of the motor van
WR 5906 to exercise reasonable care while driving along Jalan
Kamaruddin Isa towards the direction of Jalan Ghazali Jawi (Craig v. Glasgow Corporation [1919] 35 The Times Law Reports 214, HL; and Boss v. Litton
[1832] English Reports 172, 5 CAR & P 407). But the plaintiff too
must take reasonable care of himself while walking on the same road
facing the hospital (Kayser v. London Passenger Transport Board [1950] 1 All ER 231; and Gaffney v. The Dublin United Tramways Co., Ltd.
[1916] Vol. II Irish Reports 472) otherwise he too would be found to
have contributed to his own injury on the basis of 50% liability and, in
fact, this was what the Sessions Court found him to be. We would agree
with the finding of the Sessions Court that the plaintiff had
contributed 50% to his own injury.
[56] It must be recalled
that when the motor van WR 5906 suddenly collided into the plaintiff,
the latter lost consciousness. That explains the reliance by the
plaintiff in his statement of claim on the doctrine of res ipsa loquitur, namely, the facts speak for themselves.
[57] Now, under this doctrine of res ipsa loquitur, what the plaintiff has to do is to establish a prima facie
case of negligence when (i) he is not in a position to prove precisely
as to how the accident had occurred; and (ii) that it is more likely
than not that it was the defendant that had caused the accident due to
his act or omission to take proper care for the sake of the plaintiff's
safety (Lloyde v. West Midlands Gas Board (supra); and Turner v. Mansfield Corpn [1975] Vol. 119 Part 2 Sol Jo 629, CA).
[58]
Here, as far as the plaintiff was concerned he did not know how the
accident had happened. He only regained consciousness in the hospital.
But the inference of negligence on the part of the defendant was clear.
By looking at the extensive damage to the defendant's motor van WR 5906,
one can reasonably conclude that the defendant had driven at a fast
speed and it had caused the plaintiff to sustain serious injuries which
led to his paralysis when the said motor van collided into the
plaintiff. The impact of the collision caused the plaintiff to be flung
upwards and landed onto the front windscreen of the motor van WR 5906.
The impact also caused the front windscreen of the said motor van to
shatter into pieces. Glass fragments of the front windscreen of the said
motor van fell onto the road near to the centre white line as seen in
the sketch plan.
[59] If the cause or causes of the accident are known, the case would not fall under the category of the doctrine of res ipsa loquitur - where the facts would speak for themselves. In Gee v. The Metropolitan Railway Company
[1872-3] LR Vol. VIII QB 161, for instance, the cause of the accident
was known when a few minutes after the train started the door flew open
and the plaintiff fell out and the court held that there was evidence of
negligence by the railway company.
[60] In McGowan v. Stott [1930] Vol. 99 Law Journal Reports, King's Bench 357, CA, the doctrine of res ipsa loquitur was held applicable to highway accidents where the defendant there was in charge of the vehicle that caused the damage.
[61] For the maxim res ipsa loquitur to apply, the defendant must be in control of the thing that caused the accident (Turner v. Mansfield Corpn (supra)
). Thus, if a surgeon is shown to be in general command of an operation
and the patient cannot prove that it was the malpractice of the surgeon
or one of the supporting staff which inflicted damage on him in the
course of that operation, then the maxim res ipsa loquitur would apply in an action for negligence by the patient against the surgeon (Mahon v. Osborne [1939] 2 KB 14, CA, [1939] 1 All ER 535, CA).
[62] Another interesting case would be the case of Widdowson v. Newgate Meat Corporation and Others
[1997] Times LR 622. In that case, neither party gave evidence. The
plaintiff did not give evidence because he suffered from a serious
mental disorder and he was found lying in the middle of the nearside
lane of a dual carriageway. The defendant, on the other hand, did not
give evidence because he thought that he had no case to answer, and he
had told the police that he had been travelling at about 60 m.p.h. with
the headlights on high beam and suddenly he collided into something. He
also told the police that he did not know what he had collided into and
that he had seen nothing. The trial judge refused to apply the maxim of res ipsa loquitur
and forthwith dismissed the plaintiff's claim. On appeal, the Court of
Appeal held that the trial judge was wrong. The Court of Appeal also
held that although the maxim rarely applied in traffic cases, it was
also not usual for there to be no evidence from either party. It was
argued that the plaintiff could have asserted that it was more likely
than not that the effective cause of the accident was the failure of the
driver, after a long day, to observe and avoid the plaintiff, and no
plausible explanation had been offered to rebut this inference. The
Court of Appeal then assessed contributory negligence at 50 per cent and
by doing so it split the liability equally.
[63] Equal apportionment was also ordered in Jenkins v. Holt
[1999] Times LR 416, CA. In that case, the facts showed a collision
between two motor cars. The defendant there drove the motor van into the
plaintiff who was, at that time, executing a U-turn on a wide straight
road. Both the parties denied having seen the other on the road.
[64] The Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts Docks & Engineering Co. Ltd. (The Wagon Mound)
[1961] AC 388 (known generally as "Wagon Mound (No: 1)"), rejected the
test of remoteness in the tort of negligence propounded by the Court of
Appeal in In re An Arbitration Between Polemis And Another And Furness, Withy And Company, Limited
[1921] 3 KB 560, CA, (hereinafter referred to as "Re Polemis") to the
effect that the negligent defendant should be liable for all the direct
consequences attributable to his negligence.
[65] According to the Privy Council in The Wagon Mound (No: 1) (supra)
the proper test to apply for remoteness of negligence would be that the
defendant is only liable for damage of a kind which a reasonable man
should have foreseen.
[66] The injuries sustained by the
plaintiff should have been foreseen by the defendant when the defendant
drove the motor van WR 5906 at a fast speed and collided into the
plaintiff who was walking by the side of the road. Any reasonable man
similarly placed in the situation in which the defendant was placed when
driving the motor van WR 5906 should have foreseen that an accident
would occur and that the plaintiff would sustain those injuries.
[67] According to the Privy Council in The Wagon Mound (No: 1) (supra)
at pp. 425 to 426 that "the essential factor in determining liability
is whether the damage is of such a kind as the reasonable man should
have foreseen." It is this test that I have applied to determine the
liability of the defendant in this appeal.
[68] The
defendant emphasised that the plaintiff had in his police report said
that he was walking on the left side of the road when he was collided
into. Whereas the plaintiff had in his evidence said that he was not
walking on the left side of the road as one faces the hospital but if
from the hospital he was walking on the left side of the road.
[69]
It must be recalled that the plaintiff suffered devastating injuries.
He became paralysed from the waist downwards. That must have been too
much for him to bear. His whole world must have fallen into pieces. In
that frame of mind, the plaintiff lodged his police report at about
11.40pm on the night of 10 July 1996 and on the next day - on 11 July
1996, he left for Indonesia.
[70] It makes no difference
whether the plaintiff, if indeed it was true, had crossed the road from
left to right or from right to left because the defendant had put his
case to the plaintiff that the plaintiff was stationary at the centre
white line when the plaintiff was purportedly collided into by the third
party motor car.
[71] But the defendant, in his statement
of claim against the third party, pleaded that the plaintiff was walking
by the side of the road when the third party vehicle collided into him.
[72]
And when the defendant gave evidence he surprisingly went against what
he had pleaded and what his counsel had put to the plaintiff about the
plaintiff crossing from the defendant's right to the defendant's left
and that the plaintiff was at point "O" marked on the sketch plan when
the plaintiff was collided into. What all these amounted to was this.
That the plaintiff was crossing the road, which was in the defendant's
police report and neither was it pleaded by the defendant nor was this
put to the plaintiff under cross-examination.
[73] Had the
High Court judge asked the correct question and viewed the evidence in
its totality instead of compartmentalising them, he would, with respect,
have apportioned liability in equal proportion between the plaintiff
and the defendant like what the Sessions Court did.
[74] The correct approach to appraise the evidence in an appeal of this nature has been laid down by this court in Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ 545. There at pp. 549 to 550, this court had this to say:
We
are fully conscious that this is an appeal that turns upon a question
of fact. However, a careful reading of the trial judge's judgment shows
that the process of reasoning adopted by him for preferring the evidence
of the defence witnesses is based upon a wrong premise and does not
accord with a well-settled principle that goes to form the fulcrum upon
which the scales of procedural justice turn.
First, the trial
judge appears to have completely overlooked the inherent probabilities
of the case. Evidence was led to prove that the plaintiff was a person
who had a history of following orders given to him by those who held him
in their custody, including the first respondent. Indeed the plaintiff
testified, without challenge, of the dire consequences that would ensue
from disobedience. All this evidence was entirely accepted by the
defendants. Yet, the defendants' case was that on this occasion the
plaintiff had wilfully disobeyed an express order given to him. The
question which the trial judge ought to have asked himself is whether it
was inherently probable that the plaintiff, on this isolated instance,
would have dared disobey an express order given to him not to climb the
tree. Had he done so, he would, upon a proper assessment of the totality
of the evidence, have come to the conclusion that the defence story was
wholly improbable.
So, here we have a case where there was
insufficient judicial appreciation by the trial judge of the evidence of
circumstances placed before him. And of the principles that should
govern such a case as the present there is no doubt.
It is trite
law that this court will not readily interfere with the findings of fact
arrived at by the court of first instance to which the law entrusts the
primary task of evaluation of the evidence. But we are under a duty to
intervene in a case where, as here, the trial court has so fundamentally
misdirected itself, that one may safely say that no reasonable court
which had properly directed itself and asked the correct questions would
have arrived at the same conclusion.
[75] Gopal Sri Ram JCA speaking for this court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19
spoke of the need to assess the evidence and to weigh them and for good
reasons accept or reject them accordingly. This was what his Lordship
said at p. 33 of the report:
Suffice to say that we
re-affirm the proposition that an appellate court will not, generally
speaking, intervene unless the trial court is shown to be plainly wrong
in arriving at its decision. But appellate interference will take place
in cases where there has been no or insufficient judicial appreciation
of the evidence. It is, we think appropriate that we say what judicial
appreciation of evidence involves.
A judge who is required to
adjudicate upon a dispute must arrive at his decision on an issue of
fact by assessing, weighing and, for good reasons, either accepting or
rejecting the whole or any part of the evidence placed before him. He
must, when deciding whether to accept or to reject the evidence of a
witness, test it against relevant criteria. Thus, he must take into
account the presence or absence of any motive that a witness may have in
giving his evidence. If there are contemporary documents, then he must
test the oral evidence of a witness against these. He must also test the
evidence of a particular witness against the probabilities of the case.
A trier of fact who makes findings based purely upon the demeanour of a
witness without undertaking a critical analysis of that witness'
evidence runs the risk of having his findings corrected on appeal. It
does not matter whether the issue for decision is one that arises in a
civil or criminal case: the approach to judicial appreciation of
evidence is the same.
[76] It cannot be denied
that the police report of the defendant was directed entirely on the
third party and not at the plaintiff. The Sessions Court judge and the
High Court judge have absolved the third party from blame because, on
the evidence, the third party did not collide into the plaintiff. That
was the end of the matter as far as the third party was concerned.
[77]
Simply put, the plaintiff's case has always been that the third party
did not collide into him. The plaintiff did not mention any third party
in his police report nor did the plaintiff make the third party as a
defendant and the plaintiff too did not shift any blame to the third
party. With respect to the High Court judge, the plaintiff has not erred
in not bringing the third party as a defendant and the plaintiff was
proved right when the Sessions Court dismissed the defendant's case
against the third party.
[78] You cannot read the evidence
of the plaintiff out of context when the plaintiff said that he did not
know how the accident had occurred. What he meant by it was that he did
not know how the accident had happened in that he did not know why the
motor van WR 5906 came and collided into him. However, the plaintiff's
evidence that he was walking by the side of the road was admitted by the
defendant in the defendant's statement of claim against the third
party.
[79] I shall now turn to the role of the third
party. There was no evidence to link the third party to the collision
between the defendant's motor van WR 5906 and the plaintiff. Indeed the
plaintiff has been very emphatic that apart from the defendant's motor
van, the plaintiff was not collided into by any other vehicle.
[80]
The third party did not give evidence and he elected to submit that
there was no case to answer. The third party was certainly entitled to
make an election (Laurie v. Raglan Building Co., Ltd [1941] 3 All ER 332, CA; Parry v. Aluminium Corporation, Ltd. [1940] Vol. 162-3 The Law Times 236, CA; Simirah v. Chua Hock Lee & Anor. [1963] 1 LNS 128; and Goh Ya Tian v. Tan Song Gou & Ors. [1981] 1 LNS 39).
[81]
The third party relied on the plaintiff's evidence and the evidence of
the investigating officer in order to exculpate himself from liability.
[82]
It is part and parcel of my judgment that the third party is not
liable, on the evidence, in this accident for the following salient
reasons:
(i) that the plaintiff has stated that apart from the defendant's motor van WR 5906, no other vehicle collided into him;
(ii)
that if the defendant's version is true that the third party collided
into the plaintiff on the third party's side of the road there would be
some glass fragments or other debris on the third party's side of the
road but there was none;
(iii) the investigating officer has
categorically stated that there was no collision between the third party
vehicle and the plaintiff;
(iv) that the third party was charged
under r. 10 of the Road Traffic Rules for colliding into a row of parked
vehicles and not into the plaintiff;
(v) it would have simply be
impossible for the plaintiff to have been thrown from point "O" as
depicted on the sketch plan to the defendant's side of the road;
(vi)
if the defendant was travelling at 45 k.m.p.h and was 20 feet to 30
feet away from the plaintiff, the defendant would have passed the
plaintiff even before the plaintiff could come to the centre white line
and if that were to happen there would not have been any accident
between the plaintiff and the defendant; and
(vii) from the sketch plan there is nothing to show that the collision occurred on the third party's side of the road.
[83] It is apparent, from the evidence, that the defendant gave three versions namely:
(i)
that the plaintiff was walking along the side of the road when the
plaintiff was collided into by the third party motor car ACN 3772;
(ii)
that the third party motor car ACN 3772 collided into the plaintiff
when the plaintiff was stationary in the centre of the road; and
(iii) that the third party motor car ACN 3772 collided into the plaintiff when the plaintiff was crossing the road.
[84]
Because of these three different versions, we were urged to reject the
defendant's case in toto and to allow the plaintiff's claim in full
because the defendant has supported the plaintiff's case that the
plaintiff was walking along the side of the road.
[85]
While acknowledging that the High Court judge had failed to consider the
three versions advanced by the defendant, we were not inclined for the
reasons adumbrated in the early part of this judgment to interfere with
the findings of liability of equal proportion between the plaintiff and
the defendant by the Sessions Court judge. The defendant was negligent
in driving the motor van WR 5906 in the manner in which he did and the
plaintiff too contributed by his own want of care for the injuries
sustained by him.
(b) Loss Of Future Earnings At RM153,600
[86]
The defendant contended, under this head, that they were illegal
earnings. The Sessions Court judge made such an award but the High Court
judge set it aside. Before us, the plaintiff argued that this award
should be re-instated based on the facts of the case.
[87]
For this exercise, it would be ideal to look at the available evidence.
Before the Sessions Court judge the plaintiff testified that "semasa
kemalangan saya ada permit yang sah bekerja di Malaysia" and that after
the accident he went back to Indonesia on 11 July 1996.
[88]
It must be recalled that the plaintiff was paralysed waist down and he
could not have gone back to Indonesia without the authorities knowing of
his departure. The plaintiff must have produced his passport at the
departure counter and the immigration officer must also have seen that
the plaintiff's work permit was valid until 21 June 1997. It follows
therefore that as at July 1996 when the plaintiff left Malaysia he was a
legal immigrant worker. And if there was anything wrong with the
plaintiff's work permit, he would surely have been detained by the
immigration. But this was not to be.
[89] Seen in this
light, the argument that at the date of the accident namely, 30 June
1996, that the plaintiff was working illegally was not true. The
plaintiff had a valid work permit in the eyes of the law and what was
outside the work permit was that he did not work with Faisal Enterprise
but instead with Lee Kam Seng Construction. The pertinent question to
pose would be this: if the permit was meant to work with Faisal
Enterprise, can the plaintiff's working with Lee Kam Seng Construction
be legitimised by merely applying for a change of employer? The answer
would be in the positive. On application, a change of employer will be
entertained by the immigration department. The fact that the plaintiff
was temporarily working with Lee Kam Seng Construction cannot be
construed that the plaintiff was working illegally in Malaysia bearing
in mind that the plaintiff's employment with Lee Kam Seng Construction
can be legitimised.
[90] While sitting on the High Court
bench, I had occasion to consider as to whether illegal earnings can be
legitimised in the case of Wakil Diri Bagi Harta Pusaka Atas Rosli Md Nor (Simati) & Ors v. TP Saffeer & Anor [1998] 4 CLJ 241. At pp. 251 to 252, this was what I said:
But
the illegality of the deceased's employment could have been
legitimised. At this stage, a repetition of the facts is necessary. The
deceased held a red identity card and according to SP1 the deceased was a
permanent resident. At the time of the accident, the deceased's father
was in Malaysia. SP1 promised to obtain the work permit for the deceased
within a period of three months from the date of recruitment. There was
no evidence to show that the deceased was unlikely to obtain a work
permit. The same scenario appeared in Nazori bin Teh & Anor v. Tay Lye Seng & Anor [1995] 4 CLJ 740;
[1996] 1 AMR 706 where the defendant failed to show that the first
plaintiff was unlikely to get a work permit. It was for this reason that
the learned Judge was of the view that the illegality was capable of
being legitimised. At pp 711-712 of the judgment, the learned Judge in Nazori bin Teh & Anor v. Tay Lye Seng & Anor (supra) had this to say and which I respectfully adopt:
At page 30 of the judgment, the learned Judge citing Ooi Han Sun & Anor v. Bee Hua May [1991] 3 MLJ 219, another Singapore High Court case where no work permit was issued, succinctly summarised the principles in Ooi Han Sun 's case as follows:
(i) that the maxim ex turpi causa non oritur actio
(no cause of action arises out of a base cause) will apply in law of
contract to prevent a plaintiff founding a claim on an illegal act or
agreement;
(ii) that the maxim has a limited application in tort
and the fact that the plaintiff is involved in some wrongdoing does not
of itself provide the defendant with a good defence in tort;
(iii) the effect of illegality on quantum of damages is not to make compensation hopeless;
(iv) that notwithstanding illegality, damages would be awarded but there would be a discount for the ex turpi causa;
(v) that consideration should be given to cases where illegality was capable of being legitimised; and
(vi) that the burden of proof of illegality was capable of being legitimised was on the plaintiff.
In
my judgment, the earnings of the deceased can, in law, be legitimised
and that being the case, the earnings derived as a cook from Zam Zam
restaurant was not illegal. Those earnings can be computed for purposes
of loss of earnings sustained by the widow and her son. This was my
judgment and I so hold accordingly.
[91] It is
germane to refer to the evidence of the plaintiff's employer, at this
juncture. This was what the plaintiff's employer said in his evidence at
p. 289 of "ARB3":
Semasa saya ambil Sukatno bekerja
saya tahu beliau dari negara asing. Saya tidak dapat kelulusan dari
pejabat Imigresen tetapi Sukatno ada permitnya sendiri.
[92]
Here, we have the plaintiff's employer admitting that he did not get
the consent of the immigration for the plaintiff to change his employer.
The burden would be on the employer to obtain the change of the
employer's permit. No such burden can be imposed on the plaintiff.
[93]
The duty has all along been on the employer who wants to take on a
foreign worker to ensure that he prepares the proper documents and
submits them to the immigration department and if the employer does not
do that, the fault cannot be shifted to an employee like the plaintiff
here.
[94] There was no reason for the plaintiff to doubt
that his work permit was valid. The plaintiff arrived in Malaysia
through the proper channels. No evidence was introduced that the
plaintiff had entered Malaysia illegally. It must be recalled that when
the plaintiff returned to Indonesia from Malaysia on 11 July 1996, the
Malaysian immigration department would have detected that the
plaintiff's passport did not have an arrival "chop". The plaintiff's
arrival and departure were proper and the plaintiff had no problem with
the immigration department.
[95] It must be emphasised that
when the plaintiff lodged his police report pertaining to the accident
on 10 July 1996, the police even recorded the plaintiff's passport
number as F 378188 on the police report itself. It must be presumed that
the police must have meticulously checked the plaintiff's passport
bearing in mind that the plaintiff was a foreignor and nothing amiss was
found.
[96] Taking the evidence in its correct
perspective, there is no concrete proof that the plaintiff is an illegal
worker. Neither is there any evidence that the plaintiff played a role
in contravening the law of this country. The High Court judge failed to
assess the evidence judiciously and he arrived at the wrong conclusion
when he set aside the award under this head.
[97] It is now appropriate to reproduce the speech of Siti Norma Yaakob JCA (as she then was) in the case of Tay Lye Seng & Anor v. Nazori bin Teh & Anor [1998] 3 CLJ 466 CA. At pp. 472 to 473, this was what her Ladyship said:
The Supreme Court's decision in Chua 's case, and its approval of the decisions reached by the other common law jurisdictions in Ooi Han Sun, Burns, LeBagge and Dhlamini
left us with the conclusion that whilst public policy would defeat any
claim based on illegality, a balance has to be drawn based on the
peculiar facts and circumstances of each case. In all the cases cited
above, there is the element of culpability on the part of the plaintiff
who claims for loss of earnings or support for the wrongdoing complained
of or that the claim flowed directly from the wrongdoing. Where he is
without fault, he may - it seems - recover according to the usual
principles of measure of damages. Thus in Chua 's case, the
deceased never applied for a taxi licence when he was operating his taxi
but instead assumed the one that was issued to his father but the
licence was never transferred into his name during his lifetime. The
deceased had committed an offence under s. 126 of the then Road Traffic
Ordinance 1958 and he could have been prosecuted and for this very
reason the estate of the deceased could not benefit from his earnings of
the use of the unlicensed taxi.
[98] Yong Pung How CJ Singapore, sitting on the High Court bench in the case of Ooi Han Sun & Anor v. Bee Hua Meng
[1991] 3 MLJ 219 was confronted with the plaintiff working illegally in
Singapore and according to his Lordship public policy will not allow
the plaintiff to be compensated for loss of earnings based on wages
arising from working illegally in Singapore and that the loss of
earnings to be based on earnings in Malaysia. At pp. 223 to 224, this
was what his Lordship said:
While, therefore, the
first plaintiff would not be precluded from claiming against the
defendant in this case in spite of his being on his way to work without
having a work permit at the time of the accident, the question has to be
considered again from the point of view of the quantum of damages to
which he is entitled, and in particular, whether and to what extent his
illegal earnings in Singapore at the time of the accident might be used
as a basis for calculating his pre-trial loss of earnings and his future
loss of earnings. As to the effect of illegality on the quantum of
damages to be awarded, the case law in Singapore and Malaysia is scanty
and not entirely clear. In Kang Bark Teng & Anor v. Lee Kwee Lim & Anor [1952] 1 LNS 42;
[1952] MLJ 27, an unlicensed pork seller was killed in a motor
accident. Rogers J in the Singapore High Court, apparently without the
benefit of argument or case law on the point, found the deceased's
position to be one of uncertainty, but, as the deceased had been earning
$300 per month for some time, he ignored the illegality and fixed the
damages for the dependents on that basis. In Tan Chooi Thin & Anor v. Teo Whee Hong [1953] 1 LNS 105;
[1953] MLJ 203, the deceased was a member of the crew of a motor junk
and was alleged to be deriving some extra-curricular income from the
illegal business of trading in precious stones in violation of customs
legislation. Although there was no evidence, Buhagiar J in the Penang
High Court observed obiter that, even if there was reliable evidence as
to its nature, he did not think that the profits made from that business
could be excluded in reckoning the deceased's earnings. In Yaakub Foong v. Lai Mun Keong & Ors [1986] 1 CLJ 355; [1986] CLJ (Rep) 790,
the plaintiff who was a Malaysian citizen was run down in Johore Bahru.
Liability was admitted and the only dispute was on the quantum of the
plaintiff's earnings. The plaintiff 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. Shankar J was of
the view that, if there had been cogent evidence as to the precise
amount of the tax payable by the plaintiff and of the amount which he
had illegally earned in contravention of his work permit, he would have
discounted the damages arithmetically due to the plaintiff on both
counts.
[99] Again, at pp. 224 to 225, his Lordship continued to say:
In
my judgment, the assessment of the first plaintiff's loss of earnings
should be based on an estimate, however difficult and imprecise this
might be, of what he would have earned in Malaysia had there been no
accident to him. The immigration laws and regulations which require work
permits to be obtained by foreign workers before they can work in
Singapore were not designed merely to raise a little extra revenue, but
to implement a basic public policy. To compensate the first plaintiff on
the basis of what he might have earned by working illegally in
Singapore without a valid work permit would be against public policy and
wholly improper. Apart from the first plaintiff's statement in his
evidence that he expected Ching to get a work permit for him soon, there
was no evidence whatsoever that an application for a work permit had
been or would be made, or, indeed, that an application would necessarily
be successful, if made. An examination of his passport showed that,
although he made numerous visits to Singapore from 1978 to 1983, he had
only been issued with a work permit for two successive three-month
periods in 1980 and on all other occasions was in Singapore only on a
social visit pass which prohibited employment. It would appear that he
had no work permit even in his most recent job as a fitter and welder in
another shipyard which he left for Ching only a few days before the
accident.
In assessing what he would have earned in Malaysia had
there been no accident to him, the court has to take a pragmatic
approach to the problem. I have in this case discarded the pay and the
other support given to him by his sister, as they appear to me to be in
the nature of support by the family rather than wages in an arms-length
employment which can serve as a reliable guide. Having regard to the
unchallenged evidence that wages in Singapore were about 50% higher than
those in Malaysia, the fact that he had little education, and the
amount of wages paid by his sister to other workers in her shop, I have
awarded him S$300 per month (as the Singapore dollar equivalent of the
wages which he would have earned in Malaysia) for the whole of the
period of about 94 months between the accident and judgment. Similarly,
in calculating his future loss of earnings, I have taken the same figure
of S$300 as the multiplicand and, having regard to his age, applied a
multiplier of 15 years. I am aware that in such cases the court has a
discretion to award the damages in a foreign currency if this is the
currency which best expresses the plaintiff's loss: Miliangos v. George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 All ER 801; The Despina R [1979] AC 685; [1979] 1 All ER 421; Hoffman v. Sofaer
[1982] 1 WLR 1350. However, as the damages are being awarded for a tort
committed in Singapore and the Malaysian currency has been used only as
a means of calculation, I have refrained from departing from the usual
practice of the court and have continued to express the damages awarded
in Singapore dollars.
[100] Unfortunately, the
plaintiff's loss of future earnings cannot be based on what the
plaintiff would have earned in Indonesia because no evidence was led to
assist the Sessions Court judge. Looking at the cold print, and based on
the available evidence, this court would accordingly re-instate the
award under this head which was allowed by the Sessions Court judge.
Conclusion
[101]
For the reasons adumbrated above, we allowed the appeal of the
plaintiff with costs here and below. We set aside that part of the
decision of the High Court judge which dismissed the plaintiff's claim
against the defendant. We also set aside the decision of the High Court
judge in not awarding loss of future earnings at RM153,600. We affirmed
the decision of the Sessions Court judge in regard to the findings of
50% liability against the defendant for negligence and 50% liability
against the plaintiff for contributory negligence. We also affirmed the
decision of the Sessions Court judge in regard to the quantum of damages
awarded to the plaintiff.
[102] We also confirmed the dismissal of the defendant's claim against the third party with costs here and below.
[103]
We were told at the bar that the plaintiff had deposited the sum of
RM7,000 as security for costs at the Ipoh Sessions Court and we
accordingly made an order that that sum to be refunded to the plaintiff
forthwith.
[104] Finally, we made an order that the deposit of this appeal to be refunded to the plaintiff.
[105] On the authority of the Federal Court case of Abdul Ghaffar Md Amin v. Ibrahim Yusoff & Anor [2008] 5 CLJ 1, FC, this appeal ends here. It cannot proceed to the Federal Court.
[106]
This is a unanimous decision. I have shown this judgment in draft to my
learned brothers James Foong Cheng Yuen, JCA and Abu Samah bin Nordin,
JCA and they have kindly agreed to make it the judgment of this court.
[2009] 1 LNS 115
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