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High Court of Sabah and Sarawak |
] [Hide Context] BETWEEN
RAPAIN BIN JERIN @ JERIM ….1ST APPELLANT THE GOVERNMENT OF MALAYSIA ….2ND APPELLANT THE STATE GOVERNMENT OF SARAWAK ….3RD APPELLANT
AND
KONG SIEW LIEN ….RESPONDENT
1. This is the appeal by the Appellant against the award of damages made by the learned Sessions Court Judge on 13
Oct 2008.
2. To be more specific, the awards under appeal are:
a. RM200,000 being aggravated damages b. RM500,000 being exemplary damages
c. RM273,600.00 being loss of Housekeeping ability
3. The claim arose from a road accident which involved a massive JKR vibrating roller (“the Roller”) and a car
driven by the Respondent. The accident claimed the life of the Respondent‟s 12 years old boy who was in the car driven
by the Respondent. The Respondent survived and suffered a broken neck (fractured C2 vertebra), she remained conscious
throughout the accident and witnessed her son‟s horrific death. She was subsequently diagnosed with post- traumatic stress
disorder. Not long after the accident, she also discovered the onset of acute lymphoblastic leukemia, the treatment of which was
made complicated by the post traumatic stress disorder.
4. At the material time, the car driven by the Respondent was heading towards Sibu town along Oya Road. It was in a long line
of cars all travelling behind the Roller that was also heading in the direction. It was a two lane road and both lanes
were open to the public.
5. One by one, the cars in front of the Respondent overtook the Roller. While the car driven by the Respondent was at a safe
distance from the Roller, the latter suddenly stopped. Without any warning, the Roller started reversing and continued reversing
until it rolled directly on top of Respondent‟s car, crashing the roof and passenger cabin.
6. The learned trial Judge, after the full trial on liability issue, found the Appellant wholly liable for the accident.
The decision was uphold in the Court of Appeal.
7. In a separate hearing on the assessment of damages before a different learned trial Judge, the court made the following awards:
A. To the Respondent: (a) Special damages
i. RM118,475.91 for complications to treatment of Ph+Acute Lymphoblastic Leukemia as a result of post-traumatic stress
disorder;
ii. RM142.80 for x-ray and medication. (b) General damages
i. RM130,000 for post-traumatic stress disorder;
ii. RM45,000 for fractured C2 vertebra;
iii. RM7,000.00 for scars on forehead;
iv. RM273,600 for loss of housekeeping ability;
v. RM10,000.00 being bereavement under section 7 of the Civil Law Act 1956;
vi. RM200,000.00 as aggravated damages; and vii. RM500,000.00 as exemplary damages.
B. To the Estate of the late Chua Chee Hui (Deceased): (a). Special damage
i. RM16,156.80 being funeral expenses.
Exemplary damages
8. At common law, damages have remained the prime remedy in actions for breach of contract and tort. Ordinary damages
are compensatory in character and are based on the principle of restitution in interim, which is using money as the only means for
restoring the status quo.
9. Exemplary damages are different from ordinary damage.
The object of exemplary damages is to punish and deter. It is, to borrow the words of Lord Hailsham in Cassell & Co Ltd v Broome [1972] 1 All ER 801 at p. 826, “intended to teach the defendant and others that „tort does not pay” by demonstrating what consequences
the law inflicts rather than simply to make the defendant suffer an extra penalty for what he has done.”
10. In the English case of Brooke v. Barnard [1964] A.C. 1129 (HL), Lord Devlin expressed the view that there were only three categories of cases in which exemplary damages
could be awarded, namely:
a. Where there had been oppressive, arbitrary or unconstitutional action by the servants of the
government.
b. Where the defendant‟s conduct has been calculated by him to make a profit for himself which may well exceed the
compensation payable to the plaintiff.
c. Where exemplary damages are expressly authorized by the statute.
11. Lord Devlin also set out the considerations which should always be borne in mind when awards of exemplary
damages are being considered, namely:-
a. The plaintiff cannot recover exemplary damages unless he is the victim of the punishable behavior.
b. The power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty, as in the Wilkes
case, can also be used again liberty.
c. The means of the parties, irrelevant in the assessment of compensation, are material in the assessment of exemplary
damages. Everything which aggravates or mitigates the defendant‟s conduct is relevant.
12. The decision of the House in Rooke was affirmed by Cassell & Co Ltd v Broome [1972] 1 All ER 801.
13. In Kudus (AP) v Chief Constable of Leicesthershire Constabulary [
2001] UKHL 29, the plaintiff lodged a complaint to the police of the theft from his home of certain property. He
named a lodger at his home as the suspect. A police officer (not named in the action) assured the plaintiff
that the complaint would be investigated but subsequently forged the plaintiff‟s signature on a statement purporting to be a withdrawal
by the plaintiff of the complaint. As the theft was never investigated, the plaintiff lost the chance of his property and there
was insufficient evidence to justify a prosecution of the lodger. The defendant‟s liability was simply vicarious.
14. The Court of Appeal in Kudus had to decide whether exemplary damages can be awarded where a plaintiff established that the defendant had committed
the tort of misfeasance in public office. The Court developed the principle in Rooke towards broader availability of exemplary damages for tort when it opined that in referring to certain categories of case, Lord Devlin
was referring to the manner in which the defendant committed the tort, to his behavior and conduct in carrying out the tort,
and not to the particular cause of action upon which the plaintiff relied.
15. The principle in Rooke is adopted in Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn. Bhd. & Ors [1993] 3 MLJ
352. It is an action founded in trespass and nuisance. The plaintiffs were lawful and protected tenants and they were entitled in
law and equity to possession of the plot concerned. The court found that with indecent haste, and
by force of arms, leveling it and, in the process, demolishing various structures thereon. Moreover, the defendant should have been
advised by their solicitors that they had no defence to the plaintiff‟s action for trespass. It was held that trespass
is normally associated with intentional acts even though committed by mistake, for mistake is no defence. Regards being had
to the circumstances of the case, the court awarded exemplary damages.
16. In Sin Heap Lee-Marubeni Sdn. Bhd. v Yip Shou Shan [2004] 4
CLJ 35, it is an action founded on trespass and nuisance. In the course of developing its land, the appellant encroached and trespassed
into the respondent‟s land causing physical damage to the respondent‟s land. The fact shows that the appellant‟s act
of trespass commenced before the respondent came into possession of his land and continued after he became entitled
to possession. The High Court found that the conduct of the appellant in committing trespass and nuisance was
not only calculated to make profit but also of total disregard to its neighbours. Applying the principle in Rookes, supra, the
learned judge found that this was one of the three categories where exemplary damages could be awarded. The High Court‟s
award of exemplary damages was affirmed in the Court of Appeal.
17. In Eu Sim Chuan v Kris Angsana Sdn. Bhd. [2007] 7 CLJ 89, which was an action premised on negligence, the Plaintiffs‟
property suffered structural damage as a result of the defendant in carrying out construction work at the adjacent site. There
was no action taken by the defendant in the form of precautionary or preventive steps and measures before commencing work. The court
found the defendant to be liable for negligence for its failure to ensure that no damages would be caused to the plaintiff‟s
property before commencing its construction works at the adjacent site. The High Court took into account the conduct of the
defendant by doing nothing and waited for the plaintiff to start the action in court knowing it would take years to complete and
awarded RM500,000.00 in exemplary damages to the plaintiff.
18. In Australia, the conditions to award exemplary damages in
Australia is also divided into 3 categories, namely:
(i) tort committed in circumstances involving a deliberate,
intentional or reckless disregard of the plaintiff‟s interests;
(ii) „Conscious wrongdoing in contumelious disregard of another‟s rights;
(iii) Defendant‟s conduct must be of such character that it merits punishment, so that it must have been knowingly wanton,
fraudulent, malicious, violent, cruel, insolent, high-handed or an abuse of power.
[See- Gray v Motor Accident Commission [1988] HCA
and SB v State of New South Wales [2004] VSC 514].
19. In allowing the exemplary damages, the learned trial Judge took into account the following points:
a. The photographic evidence tendered by the Respondent which showed that the safety standard have remained
the same since the accident; the low safety standard was inadequate to ensure safety for their workers as well as to the public.
b. That the present case falls within Lord Devlin‟s second category in Brooke v. Barnard [1964] A.C. 1129. i.e. to make profit for themselves which may well exceed the compensation.
c. That the Appellants‟ conduct was outrageous.
d. That the quantum of the damage should serve as deterrence to the 1st and 3rd Appellant as well as to would be offenders.
e. The means of the parties.(Rooke, supra, and Sin Heap
Lee-Marubeni Sdn. Bhd. v Yip Shou Shan [2004] 4 CLJ
35).
f. Relying on Eu Sim Chuan v. Kris Angsana Sdn. Bhd(2007)
7 CLJ 89 (where RM500,000.00 was awarded for damage caused to property) as guideline, a sum not less than RM500,000.00
ought to be awarded since the present case involved a loss of life.
20. Learned State Legal Officer, Ms Yap Kham Kee, submitted that the accident happened while the 1st Appellant was driving the Roller at a construction site in the course of carrying out his duty; it did not amount
to oppressive, arbitrary or unconstitutional action. There was no evidence that the 1st Appellant was aware that the Respondent was behind the Roller, and therefore there was no intention to injure the Respondent or
the deceased son to make a profit for himself.
21. Mr Adrian Chew, learned counsel for the Respondent, submitted that the submission of the Respondent that the 1st Appellant was “carrying out his duty in a construction zone” did not amount to “oppressive, arbitrary or unconstitutional
action” or that the 1st Appellant had “no intention” to injure the Respondent and the deceased son clearly evince a deeply flawed application
of the principle enunciated in Rooke, supra, given the following facts in the present case:
a. The Respondent‟s 12 year old son died a horrible death which the Respondent was forced to watch helplessly.
The manner in which the accident unfolded and the gruesome aftermath caused the Respondent to develop post-traumatic stress
disorder.
b. The Respondent herself suffered near-fatal neck injuries as a result of the shocking work practices of the 1st and
2nd Defendants which did not place any importance on the safety of public road users and their own work sites.
c. Eye-witness testimonies by the Respondent‟s witnesses during the trial to determine the issue of liability all
conclusively showed a serious lack of safety signage.
d. The Defendants‟ attitude towards how they operated did not change after the tragedy. Even after being found 100% liable
for causing the accident, photos of JKR work sites taken by the Respondent‟s husband PW5 and tendered as evidence all showed
no change by the Defendants. Everything remained the same with dangerous metal poles sticking out on roads, heavy machinery
being operated without warning signs to alert motorists.
e. In Court during the hearing of the assessment of damages, the Defendants‟ officers such as DW1 and DW2 still
refused to apologise (even after liability had
already been established by the Court) and persisted to blame the Respondent for her own loss.
f. DW2 had the audacious insensitivity to display a cavalier attitude and to say (under cross-examination) that he would
not change anything about how JKR managed its work site even if given the chance to revisit the tragic day of the accident.
22. Mr Adrian submitted that the learned trial Judge gave the award of this “minimal sum” which is reasonable
and reflective of the Court and public‟s disapproval of the reckless manner in which JKR and its works carry
out their public duties.
23. A picture speaks a thousand words. The photographic evidence depict the tragic sight of the Respondent‟s
deceased boy and the Respondent being trapped inside the car after the Roller crashed the roof of the Respondent‟s car. Tragic
as it is, it is pertinent to keep at the foremost of the mind that exemplary damages is only suitable in limited situations.
It is my considered decision that the present case does not fall within the situations for which exemplary damages should
be awarded.
24. My reasons are:
24.1 In finding that the Appellants‟ conduct was outrageous, the learned trial Judge was clearly influenced by the photographs
taken at two project sites along Jalan Tunku Abdul Rahman and Jalan Tun Abang Haji Openg, Sibu. Through these photographic
evidence the Respondent sought to show that the lack of safety measures – no road signs, no people stationed behind
the Roller to warn motorists that road construction was in progress, no barricades preventing motorists from entering the construction
site –that led to the accident in this case was still evident in other road construction sites. This prompted the learned trial
Judge to think that the 3rd Appellant had not learnt the lesson from the tragic accident, as it still has not adopted sufficient safety measures to ensure
the safety of its workers and the public. This, said the learned trial Judge, warranted an exemplary damages.
24.2 In my judgement, the learned trial Judge had fallen into error by allowing the safety standard or measures that was purportedly
found wanting at the other construction sites to justify an exemplary damages. The Respondent has not become a
victim because of these alleged inadequate safety measures. As such, she cannot rely on them to press for exemplary damages.
24.3 The Respondent has brought to the Court‟s attention that the gain stated by Lord Devlin does not include only monetary
gain. Lord Morris in Cassell, held that exemplary damages are warranted if:
a defendant has formed and be guided by the view that though he may have to pay some damages or compensation because of what he intends to do, yet he will in some way gain (for the category is not confined to money-making in the strict sense) or may make money out of it, to an extent which he hopes and expects will be worth his while.
24.4 The 1st Appellant was at the material time an operator of a road roller working on the construction site. It is difficult to imagine what
benefit – financial or otherwise
- he would hope to derive by causing the accident. On the contrary, as a result of the accident, he was charged in court
and an internal inquiry was held with the purpose of determining whether disciplinary action be taken against him.
24.5 Unlike Gray‟s cas e , supra, in which the defendant drove a car deliberately towards the plaintiff, striking him and injuring him severely, the
unfortunate accident in this case was the result of the 1st Appellant for failing to exercise proper look out when reversing the massive
Roller. The 1st Appellant said only after he was certain that there was no vehicle behind him, he started to reverse the Roller and concentrated on
the side mirror of the Roller to ensure that the Roller would not fall into the drain which was on the left. When he suddenly felt
something stuck from behind, he thought it was the cone located on the project site. He was shocked to see a vehicle beneath the
Roller. He truly did not see or realize that the Respondent was behind the Roller. The careless driving of the 1st Appellant is far from intentional or arbitrarily. Nor can it be described as “conscious wrongdoing and contumelious
disregard” of the Respondent‟s right”.
24.6 The 3rd Appellant is a State government department; one of its primary duties is to upgrade public roads. For every project including
the Sg Oya Road project (where the accident happened), a budget is allocated. DW1 said that there is potential risk of being
sued in every project and that was why they took out insurance coverage. It put in place safety measures and advertised
a notice in the newspaper to ensure safety to the public.
24.7 There is nothing in the evidence that would suggest that the 3rd Appellant had calculated to scale down the costs on safety measures because it considered it
worthwhile compared to the compensation to be paid in the event of accident.
25. For the reasons which I have given, I find merits in the appeal against the award for exemplary damages.
Aggravated damages
26. In Rookes v Barnard, Lord Devlin said that aggravated damages were appropriate where the manner in which the wrong was committed was such
as to injure the plaintiff‟s proper feeling of pride and dignity or gave rise to humiliation, distress, insult or pain.
27. Example of the sort of conduct which would lead to these forms of intangible loss were conduct which was offensive or which
was accompanied by malevolence, spite, malice, insolence or arrogance. In other words, the type of conduct which had previously
been regarded as capable of sustaining a punitive award. It would therefore seem that there are two elements relevant
to the availability of aggravated award, first, the exceptional or contumelious conduct or motive on the part
of the defendant in committing the wrong and second, intangible loss suffered as a result of the plaintiff, that is, injury
to personality.
28. The principle as laid down in the case of Rookes is adopted in Cheng Hang Guan, supra.
29. In Thompson v Commissioner of Police of the Metropolis [1998] Q.B 498 at 2.19, the plaintiff claimed damages against the defendant for false imprisonment and malicious prosecution. The
Court of Appeal, after noting the penal element in the award of aggravated damages, held that that aggravated damages “can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient
compensation for the injury suffered if the award was restricted to a basic award …”
30. In Kralj v McGrath [1986] 1 ALL ER 54, a case of medical negligence where the expert evidence, accepted by the judge, described the doctor‟s conduct as “horrific” and “completely unacceptable”. Woolf J considered that the concept of aggravated damages was not appropriate to claims arising out of medical negligence, since it conflicted with the general principle that damages for loss suffered as the result of the defendant‟s breach of duty should be compensatory.
31. In AB v South West Water Services [1993] QB 507, a case of public nuisance. The Court of appeal held that the plaintiffs‟ feelings of indignation, which were
common to many plaintiff litigants, could not be categorised as pain and
32. In Ashley and Anor v Chief Constable of Sussex Police [2008] UKHL 25, Lord Neuberger observed:
“Aggravated damages are awarded for feelings of distress or outrage as a result of a particularly egredious way or circumstances in which the tort was committed, or in which its aftermath was subsequently handled by the defendant. If that is so, I cannot see why such damage should not logically be recoverable in some categories of negligence.”
33. In Australia, aggravated damages are awarded in cases where the defendant has acted, either in committing a tort or
thereafter, with contumelious disregard of the plaintiff‟s rights, in an insulting or high-handed way or with malice and such
conduct must have increased the plaintiff‟s suffering.
34. In awarding the aggravated damages, the learned trial Judge took into account that it was not an ordinary
accident and that the Respondent had to witness the Roller rolling towards and onto her and the son, and live with that ordeal.
35. Learned trial Judge also said:
“It must be born in mind that the 1st Defendant‟s attitude towards the whole incident showed that he was unremoseful. He may have been acquitted and discharged of the criminal charge for the accident, but he could not absolve himself of the tortuous act of which he had been held wholly liable and which the 3rd Defendant had been held vicariously liable. The fact that the 1st Defendant dismissed the incident as nothing more than pure accident and that he should not be faulted had definitely caused insult and pain to the Plaintiff and therefore, she is entitled to be compensated. (See Rooke v. Barnard (No. 1) [1664] UKHL 1).
Much had been described at the trial as well as in the submission as to how painful it was to lose a child of young age in that incident. In short, this mother‟s grief could not be measured in monetary sense, but nonetheless, she and the Estate are entitled to aggravated damages.
To make the matters worst (sic), the Defendants showed no remorse and no apology was offered to the Plaintiff, thus aggravating her emotional stress. The court was therefore with the Plaintiff in her submission that, aggravated damages should be awarded for the egregious way or circumstances in which the tort was committed as the way the Defendant treated this case, notably the admission by the 1st Defendant that he was
not looking at the road when reversing on that fateful day; the lack of remorse on that part of Jamil Busran (DW2) at the trial on liability; the Defendants casting the blame on the Plaintiff for the whole incident and the shoddy conduct of the internal inquiry into the incident. (See Ashley and Anor. V. Chief Constable of Sussex Police [2008] UKHL 25). The court therefore awarded RM200,000.00 to the Plaintiff as aggravated damages g for the above reasons.
36. Mr Chew submitted that the court must take into account the following “extraordinary” matters that came to
light during the course of the trial that justified the trial judge‟s conclusions:
a. The 1st Appellant‟s admission that while reversing the Roller, his eyes were looking at the drain on the side of the road and not
the other road users around his massive vehicle.
b. The lack of remorse as shown in the following conduct of the Appellant which not only caused much grief and insult to the Respondent,
but also showed the extent the Appellant would go to delay the trial:
i. Appellant did not apologise and remained unremorseful that he had been acquitted of the criminal charge for the accident.
ii. The calling of Jamil bin Busran (DW2) during the trial on liability issue to testify as a witness. This witness, whose
credibility is dubious, offered an alternative version of events which was far- fetched and highly improbable.
iii. Despite the court had already determined the Appellant be liable 100% for the accident, instead of taking opportunity
to apologise or at least to appear apologetic, DW1 (Engineer in charge of the Civil Engineering And Maintenance Section of JKR,
Sibu Division) defiantly told the court that even after this tragedy, he would not change anything about the safety
standards practiced by JKR.
iv. When shown the photographic evidence that showed that the work sites managed by JKR along the road to Sibu Airport and
around town that clearly posed a danger to public road users with inadequate warning signs or safety measures in place, DW1
refused to answer when asked in cross-examination if he thought this kind of safety standard was acceptable to him.
v. DW1 told the court what had happened was
merely “a pure accident”
vi. Reliance on the internal inquiry conducted by the
3rd Appellant after the incident to “whitewash” the accident. It was a “farcical” inquiry as it was conducted by DW5,
an administrative assistant who had no experience or training to chair the inquiry. They only heard one version presented by their
own staff members and they did not call for the testimony from the plaintiff or other eye- witnesses at the scene of the tragedy.
Towards the end of the inquiry, DW1 told DW5 that disciplinary action should not be taken against the 1st Appellant.
37. Mr Chew submitted that the Respondent suffered post- traumatic stress disorder which has been proven to be
caused by the horrific accident, which should be taken into account in awarding aggravated damages. To support this, Seah Yit Chen v Singapore Bus Service [1978] 1 LNS 56, which
held:
Neuroses, phobias and other psychic disorders arising from accidents which can be recognized as illness in themselves may well be causes for claims; where such disorders supervene after an accident, they can be
taken into account in awarding aggravated damages for the main injuries for which damages are claimed.
38. Following the decision of Ashley and Anor v Chief Constable of Sussex Police [2008] UKHL 25, the law is fairly settled that aggravated damage is available to certain categories of negligence “for feelings of distress or outrage as a result of a particularly egredious way or circumstances in which the tort was committed,
or in which its aftermath was subsequently handled by the defendant”
39. Undeniably, the death of the Respondent‟s deceased son is tragic and any sympathy felt for the trauma the Respondent experienced
for having to witness the death of the son right in front of her eyes is understandable. That said, I regret to say that there is
nothing in the evidence that would suggest that the 1st Appellant was motivated by malevolence or spite against the Respondent, when he reversed the massive Roller. It was not done
in an egregious way.
40. As stated earlier, the 1st Appellant said that he did look back to make sure the road was clear. Only after the road was clear did he start to reverse and
he concentrated more to the left where the drain was. Learned trial Judge who heard the trial on liability issue observed that
the driver sitting on the Roller would not be able to see the area 4-5 feet at the rear of the machine. Given this blind spot
and given that the
road under construction was not closed to the motorists, the Appellants had failed in their duty by not closing the road that was
under construction to the motorists or by not providing someone to be around or behind the Roller to warn the motorist
that the construction work was in progress on the road. As a result of this breach of duty of care, the tragic accident happened.
The 1st Appellant did not intend the accident, let alone to do it egregiously or malevolently. It was indeed a “pure accident”.
As DW1 said, “We also don‟t‟ want the incident to happen and nobody wants to.” I do not think when the Appellants said the accident was a “pure accident”, they were being unremorseful. They also did not
mean to be heartless or intend to inflict much grief and insult to the plaintiff or her sense of lose.
41. This is not a case for defamation, I therefore do not think the Respondent‟s failure to tender apology for the accident
should be taken into account when considering the exemplary damages. Bearing in mind that the project in question
was under insurance cover, one might ask whether the Appellant were at liberty to decide on the case by tendering apology
once the insurance company has stepped in. Further, the Appellant had appealed against the decision against the Appellants
on liabilities, and the appeal was still pending hearing while the hearing on damages issue proceeded.
42. I also do not think calling DW2 to testify at the trial can be construed as a lack of remorse on the part of the Appellants.
Surely the Appellant was entitled to defend the claim and call any witnesses who claimed to have witnessed the accident
to testify at the trial.
43. The purpose of holding the internal inquiry was to determine whether a disciplinary action should be taken against the 1st Appellant, it was not intended to “whitewash” the fault of the Appellants. Thus, there is no merit in the argument that
the Appellants‟ attempt to rely on the inquiry‟s finding to challenge the Respondent‟s claim was both insensitive
and insulting to the magnitude of the Respondent‟s loss and injury.
44. As far the post-traumatic stress disorder, it is my view that the Respondent had been adequately compensated for this
psychic disorders arising from the accident, so aggravated damages cannot be awarded as additional compensation.
45. For the reasons I have given above, there is merit in the appeal against the award of aggravated damages.
Loss of housekeeping ability
46. In awarding damage under this head of damage, the learned trial Judge accepted the current costs of employing a domestic
maid as submitted by Mr Chew and calculated the future loss on the normal life expectancy of 19.8 years.
47. The Appellant‟s complaint on this award is premised on two points.
48. Firstly, Ms Yap submitted that it is established law that special damages must specifically pleaded and strictly proved,
citing Ong Ah Long v Dr. S. Underwood [1983] 2 MLJ 324, Sam Wun Hoong V Kader Ibramshah [1981] 1 MLJ 295 and Thrimalai & Anor v Mohd Masry Bin Tukimin [1987] 1 MLJ 153. It was submitted that in the statement of claim under the heading of special damages, the Respondent
merely pleaded that the Respondent had suffered in the sum of RM1,510,049.00, it did not plead specifically the special
damages incurred.
49. Ms Yap submitted that the award of loss of housekeeping ability is given in cases where a severely disable
or vegetative plaintiff will have to depend on someone else and cited Yang Salbiah v Jamil Haru [1981] 1 MLJ 292, Mokhtaruddin Abdullah & Anor v Norizan bin Rosdi & 2
Others [1999] 1 AMR 419 to support the contention.
50. Ms Yap further submitted that the Respondent did not prove that the award of RM273,600.00 for loss of housekeeping
ability was reasonable in the circumstances, and that it was actually incurred. It was submitted that this sum awarded by the court
was based purely on the submission by the learned
counsel for the Respondent at pages 66-67 of Record of
Appeal.
51. Secondly, Ms Yap submitted that the Respondent of 51 years of age at the time of the trial is suffering from cancer and in
poor health; it is presumption of the Court to base the award on the normal life expectancy of 70.8 years.
52. It has been clearly established by a long line of authorities that loss of housekeeping ability is a claimable head
of damage even if the Respondent did not in fact employ domestic help but was assisted by someone else. See -
Manogharan Veeramuthu & Anor v Fauziah Md Is [2005] 3
CLJ 217, Raja Zam Zam v Vaithiyanathan [1965] 2 MLJ 252, Liong Thoo v Sawiyah & Ors [1981] 1 CLJ 126 and Daly v General Steam Navigation Co Ltd [1980] 3 All ER 696.
53. The court has measured the loss of housekeeping ability or the need for nursing care by taking into account the
estimated current cost of employing the necessary domestic help. See – Manogharan Veeramuthu, supra.
54. It is the unchallenged testimony of PW7, the consultant orthopaedic surgeon who examined the Respondent, that it would
be difficult for the plaintiff to do house chores as the injury to her neck is permanent. She has general reduction in the range
of her neck movement and suffers discomfort
collecting items from shelves or hanging up the laundry would be problematic for her.
55. The Respondent (PW4) also said that she is still experiencing pain and stiffness in her neck and cannot fully turn her head.
Her head feels dizzy some days and she has occasionally fallen down due to loss of her sense of balance. She cannot attend to the
needs of her family and household and is left totally dependent on them to take care of her. Her testimony was not challenged
in cross-examination.
56. Based on the unchallenged of PW7 and the Respondent and the physical limitation of the Respondent, it
is undisputed fact that the she would need domestic helper to assist her to carry out the housekeeping duties. In the
absence of evidence that she had actually engaged a domestic helper to assist her, it is only fair to say that the task of
rendering the needful assistance falls on the family members.
57. It is to be noted that under the Particulars Of The Plaintiff‟s Special Damages in paragraph 6 of the statement of claim,
which set out the type of expenses incurred amounting to RM1,510,049.02, it did not include the costs incurred for loss of housekeeping
ability.
58. Additionally, in the Contents of Submission at page 1 of the Plaintiffs Submissions in respect of the Assessment
of Damages dated 17.07.2008, the item on loss of housekeeping ability appears under the Plaintiff‟s
General Damage, and not as special damages.
59. It is vividly clear from the pleading in the statement of claim as well from the submission of the Respondent in respect of
the assessment of damages that the Respondent‟s claim for loss of housekeeping ability was made under general damage.
As such, it does not need to be specifically pleaded.
60. DW1, who treated the Respondent on her cancer of acute lymphoblastic leukemia, testified that this type of leukemia is one
of the worst in terms of prognosis. However, the treatment has improved in the last five years with bone marrow
transplant. The Respondent had been on treatment for the last 3 ½ years. DW1 said the Respondent is currently in remission but she
is suffering from chronic graft versus host disease and she has got some weight loss, dried eyes and lack of salivation. She is
still guarded. DW1 opined that if the respondent remained in remission for another one or two years, she might likely to be cured.
61. In my opinion, given the overall health condition of the
Respondent and the uncertain prognosis, the normal life
expectancy of a healthy person is not within the reach of the Respondent anymore. For this reason, a reduction of at least half,
if not more, should be made from the normal life expectancy.
62. The Respondent did not adduce any evidence at the trial on the current costs of employing a domestic helper. Instead Mr Chew
submitted that the court can take judicial notice of the increase agent fees from about RM5,000.00 in past recent years
to about RM 7,000.00 and the rising cost of goods and services (food, clothing, electricity, toiletries, etc) in general since
the time of judgement in Rajli Transport, supra. Mr Chew submitted a monthly salary of RM800.00 per month for pre-trial loss of housekeeping ability and RM1000.00
per month for post-trial loss. The learned trial Judge accepted the figures submitted by Mr Chew in entirety.
I see no reason to disturb them.
63. For the reasons I have given, I allow the appeal under this head of damage by setting aside the award of post-trial loss
of RM273,600.00 and substitute it with an award of RM118,800 (RM1000 per month x 12 months x 9.9 years).
Costs on solicitors and client basis
64. The learned trial Judge awarded costs on a solicitors and client basis.
65. Ms Yap submitted that the award is without basis. It being an action founded on tort, cost is normally awarded on party and
party basis, and not on solicitors and client basis. Ms Yap submitted that it is established law that solicitors and client costs
can only be awarded to parties in suit where the parties have agreed to costs on solicitors and clients basis, citing
Co-operation Central Bank Ltd v Che Wan Development Sdn. Bhd. [1991] 3 MLJ 254. It was submitted that there was no such agreement between the 1st and 3rd Appellant and the Respondent.
66. Mr Chew submitted – which, I fully concur - that the Appellants have fully participated in the costs already taxed.
When the Respondent applied for taxation of costs following this judgement granted by the learned trial Judge, the Appellants
willingly took part in the proceedings and agreed and consented to all the items on the Respondent‟s Bill of Costs except
for the Getting-Up Fee. There was no application for stay of the proceedings. The Registrar of the Subordinate Court
taxed the Respondent‟s Bill of Costs and issued an Order to which the Appellants have also never appealed against. For these
reasons, the Appellants should be stopped from raising this as a point of argument now.
67. For the above reason, not much need be said on this head of appeal.
Conclusion
68. For all the reasons aforesaid, I allow the appeal in part. I
order that ¾ of the cost of this appeal and of the hearing on damages issue, be to the Appellant.
Signed
YEW JEN KIE, J.
Date: 29th November 2011
Date Judgement delivered: 29th November 2011
For Appellants: Ms. Yap Khan Kee
State Legal Officer
State Attorney-General‟s Chambers
Tingkat 15 & 16
Wisma Bapa Malaysia
Petra Jaya
93502 Kuching, Sarawak.
For Respondent: Mr. Adrian Chew
Messrs. Battenberg & Talma Advocates
Level One, 12-14 Chew Geok Lin Street
96000 Sibu, Sarawak.
Notice: This Grounds for Decision is subject to formal correction on typographical errors.
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