FOO SWEE PENG v 1. ) AMAR AMILY BIN YUZELAN 2. ) XXXX

Case Significance

Illustrates appellate restraint in reviewing a Sessions Court's assessment of personal-injury damages for a severely brain-injured child: challenges to the cost-of-care multiplicand, contingency deductions and lifelong-care findings will not succeed unless the trial court's assessment is shown to be plainly wrong.

This High Court decision at Shah Alam is an appeal from the Sessions Court in a personal-injury claim arising from a motor accident, concerning the assessment of damages for a catastrophically injured child. The accident occurred in March 2021 and involved a motorcycle, ridden by the first plaintiff with the second plaintiff — a child — as pillion, and a motorcar driven and owned by the defendant (the appellant on this appeal). After a full trial at which nine witnesses gave evidence, including paediatric, neurosurgical and rehabilitation specialists, the Sessions Court held the defendant wholly liable and awarded damages of RM97,258 to the first plaintiff and RM675,545 to the second plaintiff, the latter reflecting a moderate traumatic brain injury, skull fractures, a craniotomy and other serious injuries. On appeal, the defendant challenged the award to the child, contending among other things that the finding of a need for lifelong care and supervision was contrary to the expert evidence, that the multiplicand for the cost of care was unreasonable, that a one-third deduction for contingencies should have been made, and that the judgment sum should be deposited with Amanah Raya Berhad; there was also a cross-appeal on future medical and rehabilitation expenses. Applying the settled principle that an appellate court will not disturb the trial court's findings of fact unless they are plainly wrong or unsupported by the evidence, the court examined the competing expert testimony and the components of the award. It held that the defendant had failed to demonstrate that the Sessions Court Judge was plainly wrong in arriving at her assessment. The court dismissed the appeal and affirmed the awards of RM97,258 and RM675,545, and, given that both the appeal and the cross-appeal were unsuccessful, made no order as to costs. The court also rejected the contention that the judgment sum for the child should be deposited with Amanah Raya Berhad and the challenge to the one-third contingency deduction, holding each to fall within the Sessions Court's proper exercise of discretion on the evidence.