DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG
RAYUAN SIVIL NO__________________
ANTARA
1.
2.
Goh Khar Wei
Tee Siew Kean
Perayu-Perayu
DAN
Mathan Kumar a/l Subramaniam
RAYUAN BALAS
Responden
ANTARA
Mathan Kumar a/l Subramaniam Perayu
DAN
1.
2.
Goh Khar Wei
Tee Siew Kean
Responden-Responden
(Dalam perkara di Mahkamah Sesyen Di Butterworth melalui
Guaman Sibil No. : 53-245-2007)
ANTARA
Mathan Kumar a/l Subramaniam Plaintif
DAN
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2.
Goh Khar Wei
Tee Siew Kean
Defendan-Defendan
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ALASAN PENGHAKIMAN
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Liability
The accident between the plaintiff and the defendant occurred on 9 June 2006 at around 8.30 am along Jalan Kulim in the district of Bukit Mertajam. The plaintiff was riding a high powered motorcycle while the 1 st defendant was driving a motorcar.
Unlike most other accident cases, the defence in this case does not dispute that the defendant was the “causa causans” of this accident. He had certainly encroached into the plaintiff’s path and collided into the plaintiff. But that is not the end of the matter.
While agreeing that the 1 st defendant had encroached, the defence is claiming that the plaintiff had contributed towards the cause of the accident. I agree that the plaintiff must be held responsible in part for the accident.
My reasons for coming to this conclusion is plain:
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The sketch plan clearly shows that the debris and broken glass pieces are found in the middle of the lane lawfully occupied by the plaintiff. This view is fortified by the plaintiff’s admission in cross-examination that prior to the accident he was riding his motorcycle in the middle of his path as he felt that there were no other vehicles close to him. He made no excuses nor gave reasons why he was not riding more safely closer to the side of the road;
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If he had ridden his motorcycle closer to the left edge of the road and not in the middle of his path, he would certainly have been able to avoid the full impact of the collision between his motorcycle and that of the defendant’s car. I agree with defence counsel’s submission that the plaintiff had regrettably failed to act according to good road traffic common sense by keeping more to the left although the left side of his lane was clear of any other vehicles;
The damage to the plaintiff’s motorcycle was quite extensive and this is not withstanding the fact that he was
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B. riding a big and high powered motorcycle. The extent of the damage would imply that the plaintiff could have been speeding. The plaintiff had testified that he had to report in for work at 8.30 am in the morning but that time still found him on the road traveling to work. Even though the plaintiff tried to make light of being late, the court is of the view that the plaintiff was rushing to work because he was already late. This would bring into play the inference that he was in a hurry and had compromised care and due attention on the road. Otherwise he would have been more alert and would have realized the danger that was looming up before him. Another car in front of him had managed to avoid the defendant’s encroachment. The plaintiff who had kept a distance away from the car in front should have been able to avoid the full impact or reduced the intensity of the impact had he been more attentive.
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I therefore could not help but come to the conclusion that the plaintiff could have avoided the accident or the full impact of it. As such some blame must be laid on his shoulders.
I find the defendant 80% to blame for the accident as his reckless and negligent driving had endangered other road users of which the plaintiff had become the victim. I find the plaintiff responsible for the balance 20% of the blame.
Quantum
General Damages:
All the medical and specialist reports pertaining to the plaintiff’s medical condition have been marked as agreed documents. These consist of the following reports:
1. Medical Report dated 27/3/2007 from Hospital Kulim
2. Medical report dated 7/3/2007 from Gleneagles Medical
Centre, Penang;
3. Specialist Report dated 19/7/2007 from Gleneagles
Medical Centre, Penang;
4. Specialist Report dated 13/3/2008 from Pusat Pakar
Tulang & Sendi, Sungai Petani by Dr Yew Khoon Seng;
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The injuries sustained by the plaintiff have been described in the specialist report dated 19/7/2007 as follows:-
(1) Fracture of cervical vertebra with quadriplegia;
(2) Fractures of the mid-shafts of the right radius & ulna and fracture of the distal end of the right radius.
I can do no better than reproduce the words of the specialist in his conclusions and opinion to describe the present condition of the plaintiff:
“(1) This man had sustained an injury to the cervical spine which resulted in quadriplegia. This necessitated surgery and fixation of the spine. He now has some movements of the upper limbs. This is fairly insignificant. Generally, he has complete paralysis of the lower limbs. His hands are also paralyzed and he is unable to make use of them as he is unable to move his fingers. He is unable to look after himself. All activities of daily living, such personal hygiene, feeding himself and also moving from bed to chair, are not possible. He requires assistance to look after his needs. As he has loss of sensation, he is liable to be prone to bed sores. He has to look after himself carefully to prevent this by having himself turned frequently.
(2) He has no control of his bowel and bladder functions. He therefore requires assistance to empty his bladder, which will consist of intermittent catheterization. For his bowel care, he will require insertion of suppositories to facilitate bowel evacuation.
(3) He will be unable to pursue any occupation as a result of his paralysis. He is a young man and his future is compromised as a result of his severe neurological deficits.”
In his report the specialist being the expert in his field has identified the plaintiff as a quadriplegic.
Counsel for the plaintiff referred to 2 cases which she felt the court would find useful in quantifying an award for the plaintiff’s horrific disabilities.
The first case she referred to was Ervina bt Talam v Othman
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B. b Baba(2008) 1 PIR 34. As a result of the accident that her mother was involved in the plaintiff in that case was born prematurely suffering spastic diplegic cerebral palsy It is noted in the report that she would suffer loss of amenities and disablement for the rest of her life. Being aware of her condition(since the plaintiff is of sound mind having not suffered any head injuries) made life more difficult for her emotionally and physically.
The learned Sessions Judge took this into consideration and awarded the sum of RM300,000 as general damages.
In the case of Wee Wee Kim v Siva Ananthan Nair (1999) 4 MLJ
286, the court awarded a sum of RM22,000 on the grounds that the 1 st plaintiff “sustained severe injuries to his head and his whole body paralysed thus requiring constant care.”
Defence counsel on the other hand referred to several authorities to substantiate his argument that the most reasonable and justifiable award to be considered by the court is in the region of RM200,000. He was of the opinion that the amount should not be more than RM200,000 as the plaintiff did not suffer any head injuries.
I have considered the arguments put forward by both sides and I have considered the grave disabilities and incapacitates that is now very much a part of the plaintiff’s being. I could not overlook the fact that the plaintiff is now a quadriplegic who has lost the right to live as normal a life as a young man should have.
He will never again walk, run or do a simple task without someone assisting him.
I had the occasion last year to decide on a case where the plaintiff concerned had permanent paraplegia. There was an absence of sensation in both the lower limbs and over the trunk including the abdomen and chest. He could not sit up independently and needed full assistance in his everyday functions. I am of course referring to the case of Izhar b Ishak v
Cheah Per Nam(2009) 1 PIR 26. In that case I awarded a sum of
RM240,000 in favour of the plaintiff.
In this case presently before me, the plaintiff is worse off as he has very little power in his upper limbs. In court he could not even lift up his arm to take the oath.
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Having considered all the important aspects, I was of the view that an award of RM250,000 is justified and an appropriate amount to be given based on the present medical condition of this plaintiff.
I agreed with the submission of defence counsel that this award for quadriplegia would submerge his claim for his other injuries such as the fracture of the midshaft right radius and ulna, fracture distal end of the right radius as well as impotency.
Impotency is a direct result of the quadriplegia and has been considered in my decision to award RM250,000.
2. Loss of Prospect of Marriage
In his evidence, the plaintiff did vaguely say that he had plans to get married but had to abandon his wish due to his condition now. I was not persuaded to allow this claim as the plaintiff gave no concrete proof of his intention to marry. He did not name his prospective bride even if there was any. He also did not say when the marriage was to be held. To say that he intended to get marriage in future is not enough for this court to consider an award to be attached as probably everyone harboured dreams of getting married one day in their future.
Since the plaintiff did not show any proof of his intention to get married in the near future, I would regrettably refuse this claim.
Special Damages
Item (h) Cost of Medicine : Allowed at RM18,414
Item (j) Travelling expenses for the family to visit the plaintiff in the hospital was scaled down to RM25 per trip.
There were no receipts produced for the cost incurred but I take into consideration that the family would naturally visit the plaintiff who was seriously ill then and that they would incur some travelling expenditure in coming to the hospital. The total amount allowed for 40 round trips will be RM1000.
Item (K); Cost of Plaintiff’s mother having to care for the plaintiff while he was in hospital: I have taken this amount into consideration when quantifying the amount for the plaintiff’s nursing care in Item Q.
Item (m): Medical Bill from Tanjong Medical Centre for the
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B. amount of RM679.30 was allowed.
Item (n) Medical Bill from Gleneagles Medical Centre was allowed at 1/3 of the actual sum. This was an agreed item.
Item (p) : Pampers :
The specialist report confirms that the plaintiff needs to use pampers as he “has no voluntary control of his anorectal function, bladder function. I accept Plaintiff counsel’s calculations of the cost of pampers for the duration of his life span. The final amount arrived at is RM65,286 after deducting off 1/3 for life’s contingencies.
Item Q : Nursing Care:
There is no doubt that the plaintiff requires nursing care for the rest of his natural life.
This is how I calculate the amount for nursing care. Firstly I take into consideration the age of the plaintiff’s mother. She is an important factor as she is the primary caregiver to the plaintiff.
Everything to do with the nursing care of the plaintiff would revolve around his mother. Therefore her age is an important factor to be taken into consideration. Once she gets enfeebled and no longer able to care for the plaintiff as solicitously and lovingly as she does now there must be backup caregivers to take her place.
At the time of the accident the plaintiff’s mother was 44 years old and he was 23 years. From the age to 44 years to her reaching the age of 55 years is one phase of the plaintiff’s calculations for nursing care.
For this 11 years of the first phase, I would think that the amount to be allowed for nursing care would be the sum of RM500. This is a reasonable amount as this is around the cost of procuring a maid to provide the same service that his mother could provide.
RM500 multiplied by 11 years would be RM66,000.
Thereafter for the 2 nd phase whe n the plaintiff’s mother reaches 55 years of age, I would use the multiplier of 31 years and deduct 11 years of the first phase away. That would leave
20 years left in the balance.
At this time the plaintiff’s mother would probably not be able to personally care for the plaintiff as well as she could have. She would want to employ help for this purpose. I would therefore
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This would ensure that the plaintiff will be provided with the best possible care and attention that he wuld need in his later years.
Therefore I come to the total sum of RM360,000 for the remaining 20 years.
RM360,000 added to RM66,000 would yield a total of
RM426,000 being the total award for nursing care.
Item (t): Loss of Earnings
The plaintiff’s employer testified as to the plaintiff’s earnings.
It is sad to note that the plaintiff could only experience 9 days of working life before he met with an accident. His basic salary was
RM1750 per month and he was entitled to claim for overtime allowance.
I allow the sum of RM1750 minus RM120 for living expenses per month. Therefore the total claim allowed for full loss of earnings is:
RM1750 – RM120(living expenses) = RM1630
RM1630 x 16 years = RM312,960
For overtime, I re ject counsel’s calculations on the ground that overtime is never fixed and fluctuates from day to day and month to month. Since the plaintiff had only just commenced employment there is no foundation to confirm how much exactly the plaintiff would earn through overtime. I am of the view that a more realistic sum would be RM150 per month. This multiplied by 16 years would come to a total of RM28,800.
Item (u): Loss of EPF.
I allow the sum as claimed.
All other items of special damages that have been agreed upon will be allowed. The Plaintiff is also entitled to the usual rate of interest usually reserved for running down claims and of course the plaintiff is entitled to costs of this suit.
Dated 10 December 2009
Julie Lack
Hakim Mahkamah Sesyen
Butterworth
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