1. ) Roey Vibishanan a/l Nagalingam 2. ) Grand Millenium Management v Ooi Kwan Yih

Case Significance

Illustrates appellate recalibration of general damages for a severe traumatic brain injury within the non-intervention principle, while leaving undisturbed the findings on liability and loss of future earnings.

This High Court decision at Shah Alam is an appeal and cross-appeal in a running-down action left unsatisfactory to both sides after the Sessions Court trial. The Sessions Court had found the first appellant wholly liable for the collision, awarded the respondent a substantial sum for loss of future earnings, and assessed general damages of RM40,000 for a severe traumatic brain injury. The appellants, being the driver and an associated management entity, challenged both the finding of 100 per cent liability and the loss-of-future-earnings award, while the respondent cross-appealed that the RM40,000 for the brain injury was inadequate to reflect the gravity of the injury. The Court addressed liability first and found no error in the Sessions Court’s conclusion, and it likewise found no error in the award for loss of future earnings, declining to interfere with those findings. On the quantum for the severe traumatic brain injury the Court applied the settled principles restraining appellate intervention in damages, drawing on Topaiwah v Salleh, the "good gracious test" in United Plywood & Sawmill Ltd v Lock Ngan Loi, and Jamiah bt Holam v Koon Yin, under which an appellate court will not disturb an award unless it is extremely inconsistent with the discernible trend or made on a misapprehension of fact or an erroneous assumption of law. The Court noted counsel’s fairness in acknowledging that a comparator relied on by the respondent, in which RM400,000 had been awarded, was distinguishable on its facts, while contending that a figure in the range of RM200,000 to RM250,000 would be fair. Having considered the expert reports, the authorities and the submissions, and while rejecting those higher comparators as distinguishable, the Court held that RM40,000 was unreasonably inadequate for so serious an injury and increased the award to RM80,000. Per Choong Yeow Choy JC, the respondent was awarded costs of RM5,000. The judgment illustrates appellate calibration of general damages for catastrophic injury within the bounds of the non-intervention principle.