DHARMALINGAM A/L SANGAMANY v 1. ) SIVAKUMAR A/L RAJAGOPAL 2. ) TOKIO MARINE INSURANS (MALAYSIA) BERHAD

Case Significance

A running-down appeal, with an intervening insurer, in which the High Court reassessed quantum — disallowing scarring and soft-tissue claims for want of medical diagnosis, preferring the defence-proposed prosthesis, and assessing loss of earnings on limited evidence — and dismissed the appeal.

This High Court (Shah Alam) decision is a civil appeal in a personal-injury claim arising from a road accident, in which the second respondent is an insurer that had been allowed to intervene. The appellant claimed to have sustained serious injuries, including the amputation of two fingers, in a motorcycle accident on 17 February 2018 involving another vehicle. The first respondent was the driver and owner of the other vehicle, and the second respondent, the insurer, had been allowed to intervene following a successful appeal to the High Court that was upheld by the Court of Appeal in earlier reported proceedings between the parties. In the Sessions Court the claim had been dismissed and the insurer's counterclaim allowed after a full trial, and the appellant appealed to the High Court on liability, quantum and the counterclaim.

The court dismissed the appeal with costs of RM5,000, following which the appellant appealed to the Court of Appeal. On the various heads of damage the court undertook its own assessment. In relation to claims for scarring and soft tissue injuries, it found a lack of supporting medical evidence, particularly in the diagnosis sections of the relevant medical reports, and disallowed those claims. On the claim under special damages for functional prosthetics, the court found the prosthesis proposed by the defence witnesses to be more suitable and practical in meeting the appellant's functional needs, and assessed the award for that item on that basis.

On the claim for loss of earnings, the court undertook a fresh assessment of the available evidence. The appellant conceded that there were discrepancies and a lack of formal documentation to support the claim, but submitted that a monthly income of RM1,500 would be reasonable in the circumstances. Having considered the authorities cited and the evidence adduced, the court proceeded to assess the loss of earnings on that footing. The judgment illustrates the appellate scrutiny of liability and quantum in a running-down claim where an insurer has intervened, the disallowance of injury claims unsupported by medical diagnosis, and the assessment of prosthetic and loss-of-earnings claims on the available evidence.